Rule of Law

Paper Title: Rule Of Law

Institution: Rani Durgawati Vishwavidhiyalaya

Course Number: BA.LL.B(Hons.)

Subject: Administrative Law

Abstract

The concept of ‘Rule of Law’ is a building block of our modern democratic society. This term is

nowhere defined in the Indian Constitution but has been often used by the Indian Judiciary in

their judgments. The concept of Rule of Law is that the state is governed, not by the ruler or the

nominated representatives of the people but by the law. ‘Rule of Law’ is neither a ‘rule’ nor a

‘law’, rather it is a doctrine of ‘state political morality’ which maintains a ‘correct balance’

between the ‘rights’ and ‘powers’ between the individuals and between the individuals and the

state to make it a free and civil society. It is a result of the struggle made by people for centuries

for recognition of their inherent rights. The main object of this paper is to give a detailed analysis

of the concept of the ‘Rule Of Law’ i.e. its origin, meaning, its position in the US, its position in

the UK, its position in India, rule of law in the modern sense and its exception. While making

this research paper several articles, reports, books, etc. were taken into consideration.

“The bedrock of our democracy is the rule of law and that means we have to have an

independent judiciary, judges who can make decisions independent of the political winds that are

blowing.”-Caroline Kennedy
 Rule Of Law 4

Rule of Law

Introduction

the Rule of Law is a novel language of the population i.e., ‘Lingua Franca’. In its most basic

interpretation, the idea of the Rule of Law is the bedrock on which the present democratic system

is built and strives to sustain. The notion of the Rule of Law refers to a geographical territory that

is administered by laws as well as regulations rather than unauthorized or unlawful processing by

men. The Rule of Law is among the most important elements in a list of modern political ideas

reflecting ethical perspectives on a global level.

In a nutshell, the Rule of Law is an inalienable characteristic of democracies around the world. It

facilitates effective administration that lends everlasting worth to the Constitution. This theory is

based on natural justice and is a traditional framework that makes a compelling argument for the

Rule of Law. The principle of the Rule of Law is a key component of modern civil society. As

the phrase suggests, the rule of law is the rule of statutes, regulations, and other rules. It refrains

from the arbitrary actions of men. It is to be noted that, the rule of law in no way signifies any

‘law’ or any ‘rule’ rather it is a doctrine of moral administration of a state with political and

social justice. It strives to maintain an ‘optimum balance of power’ between the two strata of

social structure i.e. The rulers and the ruled. The Rule of Law establishes an equilibrium between

the rights of the individuals and the duties of the state. The idea of the rule of law is based on the

principles of liberty, fair treatment, due process, equity, equality, and transparency. As a result,

India’s second Prime Minister Lal Bahadur Shastri when asked about the significance of the rule
 Rule Of Law 5

of law, asserted that – “The Rule of Law ought to be respected with the goal that the basic

structure of our democracy is maintained and further reinforced”.

Origin of Rule Of Law

"The King himself ought not to be subject to man, but subject to God and the law because the

law makes him King": Lord Chief Justice Coke quoting what Bracton said in the case of

Proclamations (1610) 77 ER 13521

The origin of the Rule of Law can be traced back to the 13th century A.D. It was during the 13th

century that Henry de Bracton, a judge in the reign of Henry III stated during the hearing of one

of the cases that – ‘The King is not supreme. He is subjected to the almighty and the law. The

king is subjected to the law because it is due to the law only that he is made a king.’

Although Judge Henry did not explicitly use the phrase ‘Rule of Law’, he highlighted the

essence of the principle of the rule of law.

In modern times, the credit for originating the concept of the rule of law has been given to

Edward Coke. He reinstated the words of Judge Henry and said that the King must be under God

and the law. He further reaffirmed the supremacy of law over the sense of superiority of the

executive.

Initially, several Greek philosophers such as Aristotle, Plato, and Cicero are considered to be the

proponents of the Principle of the Rule of Law.

The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the

rule of law remains the most popular. Dicey defined the rule of Law as the “absolute supremacy

or predominance of regular law as opposed to the influence of arbitrary power and excludes the

existence of prerogatives or even wide discretionary power on the part of the government”. 2

1
KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007;
2
The Law of Constitution, pg 198
 Rule Of Law 6

 Dicey’s Rule of Law

Dicey developed the theory of Coke in his classic book 'The Law and e Constitution'

published in the year 1885. According to Dicey, the rule of law is one of the fundamental

principles of the English Legal System. In the aforesaid book, he attributed the following

three meanings to the said doctrine:

(i) Supremacy of law;

(ii) Equality before the law; and

(iii) Predominance of legal spirit.

i. Supremacy of law

Explaining the first principle, Dicey states that the rule of law means the absolute supremacy or

predominance of regular law as opposed to the influence of arbitrary power or wide discretionary

power. It excludes the existence of arbitrariness, prerogative, or even wide discretionary

authority on the part of the Government. According to him, the Englishmen were ruled by the

law and law alone. ‘A man may be punished for a breach of law, but cannot be punished for

nothing else.'3 In his words, "Wherever there is discretion, there is room for arbitrariness and that

in a republic no less than under a monarchy discretionary authority on the part of the

Government must mean insecurity for legal freedom on the 'part of its subjects.”4 the rule of law

requires that the Government should be subject to the law, rather than the law subject to the

Government. In other words, according to this doctrine, no man can be arrested, punished, or be

lawfully made to suffer in body or goods except by due process of law and for a breach of law

established in the ordinary legal manner before the ordinary courts of the land. Dicey described

this principle as 'the central and most characteristic feature' of Common Law.

3
The Law and the Constitution, 1915, p. 202
4
Id., p. 184.
 Rule Of Law 7

ii. Equality before the law

Explaining the second principle of the rule of law, Dicey states that there must be equality before

the law or the equal subjection of all classes to the ordinary law of the land administered by the

ordinary law courts. According to him, in England, all persons were subject to the same law, and

there were no extraordinary tribunals or special courts for officers of the Government and other

authorities. He criticized the French legal system of droit administration in which there were

separate administrative tribunals for deciding cases between the officials of the State and the

citizens. According to him, the exemption of civil servants from the jurisdiction of the ordinary

courts of law and providing them with special tribunals was the negation of equality. Of course,

Dicey himself saw that administrative authorities were exercising 'judicial' functions though they

were not 'courts'. He, therefore, asserted: "Such transference of authority saps the foundation of

the rule of law which has been for generations a leading feature of the English Constitution."

According to Dicey5, any encroachment on the jurisdiction of the courts and any restrictions on

the subject's unimpeded access to them are bound to jeopardize his rights.

This concept of the rule of law has been codified in the Indian Constitution under Article 14 and

the Universal Declaration of Human Rights under the Preamble and Article 7.

iii. Predominance of legal spirit

Explaining the third principle, Dicey states that in many countries rights such as the right to

personal liberty, freedom from arrest, and freedom to hold public meetings are guaranteed by a

written Constitution; in England, it is not so. Those rights are the result of judicial decisions in

concrete cases which have arisen between the parties. The Constitution is not the source but the

consequence of the rights of the individuals. Thus, Dicey emphasized the role of the courts of

law as guarantors of liberty and suggested that the rights would be secured more adequately if
5
Cited by V.G. Ramachandran: Administrative Law. 1984. p. 6
 Rule Of Law 8

they were enforceable in the courts of law than by 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, is not the source but the consequences of the rights of individuals, as

defined and enforced by the courts." According to him, mere incorporation or inclusion of

certain rights in the written constitution is of little value in the absence of effective remedies for

protection and enforcement. He propounded: "Habeas Corpus Acts declare no principle and

define no rights, but they are for practical purposes worth a hundred constitutional articles

guaranteeing individual liberty.'6

Merits and Demerits of Dicey’s Concept

Merits

1. The theory developed by A.V. Dicey helped in making limit to the power of administrative

authorities.

2. Dicey’s theory of the Rule of Law played a major role in the growth and recognition of

administrative law.

3. The theory acts as a scale for the test of administrative action.

Demerits

1. Dicey’s theory of the Rule of Law was not completely accepted during that era also.

2. Dicey, through his theory, failed to distinguish between discretionary and arbitrary power.

3. Dicey dealt with the right of the individual only and ignored the powers of administration.

Rule of Law in the United States of America

6
The Law and the Constitution, 1915, p. 195.
 Rule Of Law 9

America adopted the concept of the Rule of Law from medieval England, which was expressed

as “A government of laws, not of men”. The federal Constitution of 1787 changed the concept of

constitutional government and introduced the “Principle of Constitutional Supremacy”.

According to Article VI of the American Constitution, “Constitution should be the supreme law

of the land”. It can be observed from the famous case of Marbury v Madison 7that the American

Constitution and the power of judicial review are the extensions of rule of law. In this case,

Justice Marshall held that an act of Congress contrary to the Constitution was not regarded as a

law. The major essentials of the American Constitution are Federalism, Separation of Powers,

and Rule of Law. They are also referred to as the heart of the American Constitution as they

contribute to achieving liberty, equality, order, and justice.

Rule of Law in Britain

The Rule of law, in the UK, was developed over the centuries as a brake on arbitrary power. The

modern concept of Rule of law owes much to the great battles between the English kings and

their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the

war between the British Empire and its American Colonies. On June 15, 1215, in the meadows

of Runnymede, King John, and his rebellious barons agreed to the great charter known as Magna

Carta. The great charter was the first significant written instrument limiting the power of the king

and confining him to what the barons regarded as good governance. These promises were a

bargain between the king and the feudal lords dictated by the force of arms.

The credit for the development of the concept of the Rule Of Law in Britain goes to Dicey.

Dicey’s formulation of the concept of the Rule of law, which according to him forms the basis of

English constitutional law, contains three principles

7
5 US (1 Cranch) 137 (1803)
 Rule Of Law 10

1. Absence of discretionary power in the hands of governmental officials. By this Dicey implies

that justice must be done through known principles. Discretion implies the absence of rules,

hence in every exercise of discretion there is room for arbitrariness.

2. No person should be made to suffer in body or deprived of his property except for a breach of

law established in the ordinary legal manner before the ordinary courts of the land. In this sense,

the rule of law implies:

a) Absence of special privileges for a government official or any other person

b) all persons irrespective of status must be subjected to the ordinary courts of the land.

c) Everyone should be governed by the law passed by the ordinary legislative organs of the state.

3. The rights of the people must flow from the customs and traditions of the people recognized

by the courts in the administration of justice.

Rule of Law in India

The notion of the Rule of Law can be ascribed back to the Hindu scriptures in India. Its roots can

also be detected in sagas and epics such as the Ramayana and Mahabharata, and also the Ten

Commandments, the Dharma Chakra, as well as other fundamental sacred writings. There have

been no writings in contemporary days that expressly examine or acknowledge the theory of the

Rule of Law. The Rule of Law is considered to be incorporated in numerous clauses of the

Indian Constitution. The founders of the Constitution were not just acquainted with Dicey’s

postulates of Rule of Law, but also with their application in British India. The principle of the

Rule of Law has played a major role in developing Indian Democracy. At the time of framing of

Constitution, the framers adopted some of the provisions from the USA and some of the

provisions from England. Our constitutional fathers adopted the concept of Rule of Law from

England and many of its provisions are incorporated in the Indian Constitution.
 Rule Of Law 11

The Constitution of India is the guiding principle of the nation, from which all other laws acquire

their legitimacy, making all other laws subordinate to it and following the postulates of the Rule

of Law outlined by the Indian Constitution.

Furthermore, Article 13(1) specifies that every law passed by the legislature must be by the

provisions of the Constitution, or it will be considered unconstitutional. As a result, any new law

must be consistent with the requirements of the Constitution. Even the Preamble of the

Constitution of India includes the words justice, sovereignty, and equality, which are

unambiguous indicators of a just and fair government with no discrepancy amongst the masses

regardless of their social status. Dicey’s enumeration of equality before the law is included under

Article 14 of the Indian Constitution, which establishes the idea of equality before the law and

equal protection under the law. The right to life and personal liberty, which is a fundamental

human right, is also enshrined in the Constitution for all citizens.

The word ‘rule of law’ has no set formulation in the Indian constitution. However, Courts in

India use it in a plethora of judgments. In India, the proverb ‘The King can do no wrong’ does

not apply, as all public institutions are subject to the jurisdiction of common law courts and the

same sets of laws. The Indian constitution is the supreme law of the land, superseding the 3

organs of the government i.e., the Judiciary, the Legislature, and the Executive. These three

governmental organs must act in accordance with the principles enshrined in the constitution of

India. Fundamental Rights are available to every citizen of India through Articles 13, 14, 15, 19,

21, 22, 25, 28 and 31A. In case an individual faces a violation of such rights then he can

approach Supreme Court or High Court under Articles 32 and 226 of the Constitution of India. It

is compulsory that any law made by the Central Government or State Government should be

complied with in accordance with the Constitution of India but if found contravening with the
 Rule Of Law 12

provisions of the Constitution then such law will be declared void. According to Article 32 of the

Constitution, the Supreme Court has the power to issue writs namely Habeas Corpus,

Mandamus, Prohibition, Quo Warranto, and Certiorari. Thus, the power of judicial review also

comes into the hands of the Supreme Court to preserve the Rule of Law and to prevent any ultra

vires laws.

Some important case laws related to the concept of the Rule of Law in India

In the famous case of Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Anr, the

court propounded the principle of basic structure and held that any part of the Constitution can be

amended without modifying its basic structure of it.

In the case of Indira Nehru Gandhi v Raj Narain8, the court decided that the ‘Rule of Law’ is

also a part of the basic structure of the Constitution and hence, it cannot be amended.

In the case of Bachan Singh v State of Punjab9, the five bench judges comprising Justice Y

Chandrachud, Justice A Gupta, Justice N Untwalia, Justice P Bhagwati, and Justice R Sarkaria,

held that the concept of the Rule of Law is free from arbitrary action and if any action is done

with arbitrary power then it will be considered as the denial of Rule of Law. This case is also

known as the “Death Penalty Case”.

In the case of ADM Jabalpur v Shivkant Shukla10, popularly known as the Habeas Corpus Case,

is one of the most important cases of the rule of law. In this case, a question rose before the court

whether the Rule of Law in India is apart from Article 21 of the Indian Constitution. Thus, the

five-judge bench comprising of Justice A.N Ray, Justice Hans Raj Khanna, Justice M

Hameedullah, Justice Y.V Chandrachud, and Justice P.N Bhagwati held that there is no rule

apart from Article 21 and there can never be a separate rule of law.
8
1975 AIR 865
9
AIR 1980 SC 898
10
1976 AIR 1207
 Rule Of Law 13

The Supreme Court extended the scope of the Rule of Law in the case of Veena Seth v State of

Bihar11, where the court stated that the Rule of Law extends to the poor and the downtrodden,

ignorant and the illiterate, who constitute the majority of humanity in India. The court ruled that

the Rule of Law does not exist merely for those who have the means to fight for their rights and

often do so for the perpetuation of the status quo which protects and preserves their dominance

and permits them to exploit a large section of the community.

In the case of Supreme Court Advocates on Record Association v Union of India12, also known

as the “Second Judges Case”, the Supreme Court held that the absence of arbitrariness is one of

the important concepts of the rule of law.

The Constitution Bench of the court in the case of Secretary of State of Karnataka and Ors v

Umadevi and Ors13 stated that “Thus, it is clear that adherence to the rule of equality in public

employment is a basic feature of our Constitution and since the rule of law is the core of our

Constitution, a court would certainly be disabled from passing an order maintaining an

infringement of article 14 in requesting the ignoring of the need to agree to the necessity of

article 14 read with article 16 of the constitution”.

Exception of Rule of Law

In India, dicey’s theory of the rule of law cannot be claimed to be strictly observed; various

exceptions are given by the Indian Constitution as well as other legislation. Some of these

exceptions are as follows:

11
8 AIR 1983 SC 339
12
AIR 1994 SC 268
13
AIR 2006 SC 1806
Rule Of Law 14

1. One of the fundamental exceptions to the theory of the rule of law is the presence of

broad discretionary powers provided to the executive organ of the government. Under the

constitution of India, the president, as well as the governor of all the states, have been

provided with broad discretionary powers in connection to several matters enshrined

under three lists of the constitution.

2. According to Article 72 and Article 161 concerning the president of India and the

governor of the states respectively, they have the power to grant pardons, reprieves,

respite, or remissions of punishment or to suspend, remit or commute the sentence of any

person convicted of any offense.

3. On the other hand, the governor of the state has the power to reserve the bill for

consideration sent by state assemblies under Article 200 of the Constitution. Also, the

governor has discretionary power under the Constitution of India to send the report of the

state to the president for declaration of state emergency under Article 356 of the

Constitution of India.

4. Police officers, who are components of the executive organ of the government, have

broad powers of arrest without even a warrant in cases of cognizable offenses. In India,

criminal courts have broad discretionary powers in imposing punishments.

5. Article 14 of the Constitution of India emphasizes equality before the law. However, it

does not mean that the powers and privileges provided to the ordinary citizens of a

country can be the same as that of public servants. Public servants like administrative

officers, police officials, municipal authorities, and other such officials have been

provided with certain privileges and immunities for better functioning of the system.

Ordinary citizens of a country have been deprived of such powers.

6. According to Article 361 of the Indian Constitution, the President of India or the

governors of the states shall not be answerable under any court of law regarding the

discharge of duties under the position held by the individual.

7. Also, as per the Constitution, no proceedings shall be instituted against the President or

Governor of state regarding any criminal accusation while he is in office.

8. Under the constitution, no civil proceedings can be instituted against the President or

Governor of a state in which relief can be claimed except after the expiration of a 2-

month notice that is served on him.

9. According to international law, visiting heads of government of the foreign state, chiefs

of government, politicians, bureaucrats, and foreign dignitaries who are deployed in the

foreign state are not subject to the laws of local courts while performing their authorized

activities.

‘Rule of Law’ in Modern Sense

In today’s scenario, Dicey’s concept of the Rule of Law is not accepted in totality. The modern

concept of the Rule of Law is fairly wide and therefore it sets up an ideal for any Government to

achieve. The modern idea of the Rule of Law was formed by the International Commission of

Jurists, otherwise called the Delhi Declaration, 1959, which was later affirmed at Lagos in 1961.

According to the Modern Concept, the ‘Rule of Law’ implies that “the functions of the

government in a free society should be so exercised in which the dignity of a man as an

individual is upheld”. The International Commission of Jurists divided itself into certain working

committees, namely, the Committee on Individual Liberty and the Rule of Law, the Committee

on Government and Rule of Law, the Committee on Criminal Administration and Rule of Law,

and the Committee on Judicial Process and Rule of Law. The Committee on Individual Liberty
 Rule Of Law 16

and Rule of Law stated that the State should not pass discriminatory laws, the State should not

interfere with religious beliefs, and the State should not place undue restrictions on freedom. The

Committee on Government and Rule of Law stated that ‘Rule of Law’ not only means adequate

safeguards against abuse of power but also affects the government which is capable of

maintaining law and order. The Committee on Criminal Administration and Rule of Law stated

that ‘Rule of Law’ means Due Criminal Process, No arrest without the authority of law, Legal

aid, Public trial and fair hearing, and Presumption of Innocence. Lastly, the Committee on

Judicial Process and Rule of Law stated that ‘Rule of Law’ means Independent Judiciary,

Independent Legal Profession, and standard of Professional ethics. According to Federalist Kim

Davis, there are seven types of Modern Law; namely, Law and Orders, Principle of Natural Law,

Fixed Rules and Regulations that eliminate the idea of discretion, the due and fair process of law,

Preferences for judges and Court of Law to executive authority and administrative tribunals, and

judicial review of administrative action. Thus, the rule of law in the modern sense ensures that

there is the encouragement of political interest and where the criticism of the government is not

only permitted but also given positive merit.

Basic Principles on Rule of Law

There are certain basic principles of the Rule of law they are:

1. Law is supreme, above everything and everyone. Nobody is above the law.

2. All things should be done according to law and not according to whims and fancies.

3. No person should be made to suffer except for a distinct breach of law.

4. Absence of arbitrary power is the heart and soul of the Rule of Law.

5. Equality before the law and Equal Protection of the Law.

6. Discretionary powers should be exercised within reasonable limits set by law.

7. Adequate safeguard against executive abuse of powers.

8. Independent and Impartial Judiciary.

9. Fair and Just Procedure.

10. Speedy Trial.

Conclusion

It can be concluded that the Supremacy of law is the Aim, Rule of Law is the best tool to achieve

the Aim. The rule of law is the central theme of all democratic and civilized societies of this

world. The concept forms the basic framework of all legal systems. It is one of the tools by

which the unfettered power of the executive is kept under control through the supremacy of the

Courts. Though the rule derives from the common law system, particularly from Dicey and it

met terrible opposition due to other options of a much more efficient system of Droit

Administratif, it still forms the backbone of all civilized legal systems of the world. Even efforts

have been taken by the court to link the concept of the Rule of Law with Human Rights. The

modern concept proposed by David provides a broad concept as well as makes it possible for the

government to use it in a graceful manner as the main task of the administrative law is to fulfill

the gap between power and liberty. Thus, the government under the guideline of the Rule of Law

makes rules and conditions which do not intercept any individual dignity. Hence in conclusion

we can say that the proper functioning of government in coordination with the public will make

the concept of the Rule of Law successful.

“Genuine freedom requires the rule of law and justice and a legal framework in which the rights

of some are not made sure about by the denial of rights to other people”
Rule Of Law 18
 Rule Of Law 19

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file:///C:/Users/vipin/Downloads/Introduction%20(Lecturer%201-%205).pdf