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RULE OF LAW

Synopsis

I. INTRODUCTION 2. Equality before Law

II. HISTORICAL DEVELOPMENT 3. Predominance of Legal


Spirit
In England
IV. CRITICISMS TO DICEYS RULE OF LAW
In France
V. MODERN CONCEPT OF RULE OF LAW
In India
VI. RULE OF LAW UNDER THE INDIAN
III. MEANING OF RULE OF LAW (DICEYS
CONSTITUTION
RULE OF LAW)
VII. CONCLUSION
1. Supremacy of Law

Introduction
The phrase Rule of Law is derived from the French phrase la principe de legalite (the principle of
legality) which refers to a government based on principles of law and not of men. Rule of law is one
of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of
U.S.A and India as well. The entire basis of Administrative Law is the doctrine of the rule of law.

SIR EDWARD COKE, the Chief Justice during the reign of King James I was the originator of this
concept. He maintained that the King should be under God and the Law. He established the
supremacy of the law against the executive and maintained that there is nothing higher than law.

Historical Development [Extra]


Though there is no consensus as to the period of origin of Rule of Law it is believed that the two
fundamental principles of Rule of Law have been in existence from earliest times: those in power
should not make the laws (the separation of Powers), and all people (including those in power) should
be bound by the laws.

The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by ancient Greek
philosophers such as Plato and Aristotle around 350 BC. Plato wrote: Where the law is subject to
some other authority and has none of its own, the collapse of the state, is not far off. Likewise,
Aristotle also endorsed the concept of Rule of law by writing that law should govern and those in
power should be servants of the laws. A more secular approach to Rule of Law was adopted by
Socrates who, when convicted by Grand Jury of Athens for corrupting youth with his teaching, chose
despite possibility of escape to accept the verdict of death, in order to demonstrate his fidelity to the
supremacy to the Rule of Law.

It was PROFESSOR A.V. DICEY in his Introduction to the Study of the Law of the Constitution
(1885) elaborated modern concept of Rule of Law.

In England
Though, there is no written constitution, the rule of law is applied in concrete cases. In England, the
Courts are the guarantors of the individual rights. Rule of law establishes an effective control over the
executive and administrative power. However, Diceys rule of law was not accepted in full in
England. In those days, many statutes allowed priority of administrative power in many cases, and the
same was not challenged before the Courts. Further sovereign immunity existed on the ground of
King can do no wrong. The sovereign immunity was abolished by the Crown Proceedings Act,
1947.

In France
Under the French legal system, known as droit administratif, there are two types of laws and two sets
courts independent of each other. While ordinary courts administer ordinary civil law between
subjects and subjects, administrative courts administer the law between the subject and the state. An
administrative authority or official is not subject to the jurisdiction of ordinary civil courts exercising
powers under the civil law in disputes between private individuals.

Dicey unfortunately misunderstood the French system and formed an opinion that administrative
courts in France extended government official special rights, privileges and prerogatives against
private citizens and it had resulted in miscarriage of justice. He therefore concluded that there is no
rule of law in France. However the real position was totally different. Through the establishment of
separate administrative courts and the counseil dEtat, the French legal system subjected the
administrative to the rule of law.

In India
In India, the concept of Rule of law can be traced back to the Upanishads. In modern day as well, the
scheme of the Indian Constitution is based upon the concept of rule of law. The framers of the
Constitution were well familiar with the postulates of rule of law as propounded by Dicey and as
modified in its application to British India. It was therefore, in the fitness of things that the founding
fathers of the Constitution gave due recognition to the concept of rule of law.

In

Re Arundhati Roy

while defining the Rule of law, their Lordships opined that


Rule of law is the basic rule of governance of any civilized democratic polity. Our constitutional
scheme is based upon the concept of rule of law which we have adopted and given to ourselves.
Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever
the person may be, however high he or she is, no one is above law notwithstanding how powerful
and rich he or she may be. For achieving the establishment of the rule of law, the constitution has
assigned special task to the judiciary in the country. It is only through court that rule of law unfold its
contents and establishes its concept.

Meaning of Rule of Law (Diceys Rule of Law)


The basis of Administrative Law is the Doctrine of the Rule of Law. It was expounded for the first
time by Sri Edward Coke, and was developed by PROF. A.V. DICEY in his book THE LAW OF THE
CONSTITUTION published in 1885. According to Prof. Dicey, rule of law contains three principles or
it has three meanings as stated below:

1. Supremacy of Law or the First meaning of the Rule of Law.


2. Equality before Law or the Second meaning of the Rule of Law
3. Predominance of Legal Spirit or the Third meaning of the Rule of Law.

1. Supremacy of Law
The First meaning of the Rule of Law is that no man is punishable or can lawfully be made to
suffer in body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land.

It implies that a man may be punished for a breach of law but cannot be punished for anything else.
No man can be punished except for a breach of law. An alleged offence is required to be proved
before the ordinary courts in accordance with the ordinary procedure.

This principle is also enshrined in Article 20 of the Indian Constitution which guarantees every
accused the right to know the reasons for his arrest and the charges framed against him.

This meaning is further explained by the Supreme Court of India in

Indira Nehru Gandhi v. Raj Narain

the Court held that Rule of Law postulates that the decisions should be made by the application of
known principles and rules and in general such decisions should be predictable and the citizen should
know where he is. If a decision is taken without any principle or without any rule, it is not predictable
and such decision is the antithesis of a decision taken in accordance with the rule of law.
2. Equality before Law
The second meaning of the Rule of Law is that no man is above law. Every man whatever be his rank
or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals.

Prof. Dicey states that there must be equality before the law or equal subjection of all classes to the
ordinary law of the land. According to him, in England, all persons were subject to one and the same
aw, and there were no separate tribunals or special courts for officers of the government and other
authorities. He proclaimed:

With us, every official from the Prime Minister down to a constable or a collector of taxes is under
the same responsibility of every act done without legal justification as any other citizen.

The second meaning of Diceys rule of law finds its place in Article 14 of the Constitution. Article 14
provides that the State shall not deny to any person equality before law and equal protection of the
law. Equality before law implies the absence of any special privilege in favour of any individual. It
ensures that all are equal before the law.

3. Predominance of Legal Spirit (Supremacy of the Constitution)


The third meaning of the rule of law is that the general principles of the constitution are the result
of juridical decisions determining the rights of private persons in particular cases brought before
the Court. Dicey emphasized the role of the courts of law as guarantors of liberty and suggested
that the rights would be secured more adequately if they were enforceable in the courts of law than
any mere declaration of those rights in a document as in the latter case they can be ignored, curtailed
or trampled upon. He stated

the law of the constitution, the rules which in foreign countries naturally form part of a
constitutional code, are not the source but the consequences, of the rights of individuals, as defined
and enforced by the courts.

The independence of judiciary and the power of judicial review is a facet of the predominance of legal
spirit. In Re Arundhati Roy the Supreme Court thus observed that

It is only through court that rule of law can unfold its contents and establish its concept. For the
judiciary to perform its function and duties effectively and true to the spirit with which it is sacredly
entrusted, the dignity and authority of the court have to be respected and protected at all cost.

Criticisms to Diceys Rule of Law


The view of Dicey as to the meaning of Rule of Law has been subject of much criticism.

1. In Diceys opinion, providing discretionary power means creating room for arbitrariness.
However, in modern times it is clear that providing discretion to administration is inevitable.
2. Dicey fails to make a distinction between discretionary powers and arbitrary powers.
3. It can be seen that in all legal systems including England and India, certain privileges and
immunities are conferred on several persons such as the Head of the state, diplomats, consuls,
judges etc.
4. The third meaning given to the rule of law by Dicey that the Constitution is the result of
judicial decisions is based on the peculiar character of the Constitution of Great Britain and
does not hold good in India, USA etc.

Modern concept of Rule of law


Diceys theory of rule of law was never accepted fully even in his days. Many scholars criticized his
theory. However Davis gives seven principal meanings of the term Rule of Law which is known as
Modern concept of Rule of Law. These are as follows

1. Maintenance of law and order


2. Fixed rule
3. Elimination of discretion
4. Absence of arbitrariness
5. Due process of law or fairness
6. Natural law or observance of the principles of natural justice
7. Preference for judges and ordinary court of law to executive authorities and administrative
tribunals
8. Judicial review of administrative actions

Rule of Law under the Indian Constitution


The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and equality
are enshrined in the Preamble itself (which is part of the Constitution).

The Constitution of India has been made the supreme law of the country and other laws are required
to be in conformity with it. Any law which is found in violation of any provision of the Constitution,
particularly, the fundamental rights, is declared void.

The Indian Constitution also incorporates the principle of equality before law and equal protection of
laws enumerated by Dicey under Article 14.

In A.P. Aggarwal v. Government of NCT of Delhi the Supreme Court held that it is well settled that
every state action, in order to survive must be susceptible to the vice of arbitrariness which is the crux
of article 14 of the Constitution and basic to the rule of law, the system which governs us.

The maxim king can do no wrong does not apply to India. There is equality before the law and
equal protection of the laws. Government and public authorities are also subject to the jurisdiction of
ordinary court of law and for similar wrongs are to tried and punished similarly. They are not immune
from ordinary legal process not is any provision made regarding separate administrative courts and
tribunals.

The Constitution also ensures an independent and impartial Judiciary to settle disputes and grievances
for violation of fundamental rights by virtue of Articles 32 and 226.

In

Union of India

v.

President, Madras Bar Association

the Supreme Court held that Rule of Law has several facets, one of which is that disputes of citizens
will be decided by Judges who are independent and impartial; and that disputes as to legality of acts
of the Government will be decided by Judges who are independent of the Executive.

In

R.D. Shetty v. International Airport Authority of India

the Supreme Court held that the great purpose of rule of law is the protection of individual against
arbitrary exercise of power, wherever it is found.

In

Bachan Singh v. State of Punjab

The Supreme Court held that rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features.

Conclusion
The doctrine of rule of law proves to be an effective and powerful weapon in keeping administrative
authority within their limits. It serves as a touchstone to test all administrative actions the broad
principles of rule of law was accepted by almost all legal systems as a constitutional safeguard. The
first principle (supremacy of law) recognises a cardinal rule of democracy that every government
must be subject to law and not law subject to government. The second principle (equality before the
law) is equally important in a system wedded to a democratic polity. It is well based on the maxim,
however high you may be, law is above you, and all are equal before the law. The third principle
puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms
irrespective of their inclusion in a written constitution.