Concept of Rule of Law

• Rule of Law: Meaning

• As the term itself connotes, ‘Rule of Law’ means rule of law and not
of men.
• The expression “Rule of Law” is derived from the French phrase
‘le principe de legalite’ meaning the principle of legality.
• Defining rule of law Prof Wade expressed- “The rule of law
requires that the government should be subject to the law rather
than the law subject to the government”
• According to Black’s law dictionary, Rule of Law may be
specifically defined as supremacy of law where decision is made
by applying known principles or laws, where there is no
intervention of discretion in application of such principles or laws.
• The rule of Law is one of the basic and general principles of
the constitution. It is characterized in the words of Max Weber
as – “legal domination as an idea of government of law rather
than an idea of men.’’
• So, in essence rule of law means that everyone from the
government to its officials, together with citizens should act
according to the law.
• The doctrine of rule of law has been described as supremacy
of the law. This means that where there is rule of law no
person can be said to be above the law, even the functions and
actions of the executive organ of the state shall be within the
ambit of the law.
• Rule of law imposes a duty on all citizens in a
parliamentary democracy to obey the law and for
such obedience the law itself must be just law and
not arbitrary or oppressive law.
• The aim of rule of law like other constitutional
principles is the uplifting of freedom and fundamental
rights of the people. The rule of law has propounded
to make sure that the executive doesn’t use law of
the land or country to oppress or curtail freedom of
individuals as they are found in the bill of rights.
• Origin of the Rule of Law
• The first proponents of the doctrine of the rule of law are
believed to be Greek philosophers including Aristotle, Plato,
Cicero. For instance Plato in his book known as ‘Complete
Works of Plato’ is found to have written that the collapse of
the state is not far where the law is made subjective to the
authorities but the states where the law is considered as
supreme all the blessings of the god falls on such state and it
flourishes through all times.
• The rule of law is an ancient ideal first posited by Aristotle, a
Greek scholar, as a system of rules inherent in the natural
order
• In England, Rule of law began sometimes around 1215 when King
John of England signed the Magna Carta of 1215. The signing of
Magna Carta indicated the consent of the Monarchy of England to
be under the law and the law to be supreme. The doctrine of rule
of law in England took a new look after the conflict between the
parliament and monarchy or king aroused.
• In this conflict the parliament and the monarchy were struggling to
be supreme authority. This conflict was resolved in favour of the
parliament. After parliament became supreme over the monarchy
it started making the laws which controlled and limited power of
the monarchy. Hence executive organs in England became
subjected to the law of the parliament and that was the beginning
of the rule of law in England.
• In the United States of America (U.S.A.) the
doctrine of rule of law was first introduced in
1776 by the constitutional lawyers known as
Paine. He is of the view that America being a
free country considers Law as the king
because in every country which is free law
should be the king and no one else.
• Dicey’s Concept of Rule of Law
• He introduced for the first time that, ‘King is under God and
the Law.’ The firm base of rule of law owes its exposition to
Albert Venn Dicey. Dicey, in his book Law and Constitution
in the year 1885 further developed this concept given by
Coke. According to Dicey’s theory, rule of law has three
pillars based on the concept that “a government should be
based on principles of law and not of men”, these are-
• Supremacy of Law;
• Equality before the Law; and
• Predominance of Legal spirit.
• Supremacy of Law
• This is the first pillar of Dicey’s concept of rule of law. It
means that the law rules over all people including the
persons administering the law. According to Dicey the
absolute supremacy of the law as opposed to the
arbitrary power of the government is what constitutes
the rule of law. In other words a man should only be
punished for the distinct breach of law, and not for
anything else. The person cannot be punished by the
government merely by its own fiat but only according to
the established law.
• Equality before Law
• The second important pillar of Dicey’s concept of Rule
of Law is Equality before Law. In other words, every
man irrespective of his rank or position is subject to
the ordinary law and jurisdiction of the ordinary court
and not to any special court. According to him special
law and special courts is a threat to the principles of
equality. Therefore he is of the view that there should
be the same set of laws for all the people and should
be adjudicated by the same civil courts.
• Predominance of the legal spirit
• The third pillar of Dicey’s concept of Rule of Law is
predominance of legal spirit. According to Dicey, for the
prevalence of the rule of law there should be an enforcing
authority and that authority he found in the courts.
• He believed that the courts are the enforcer of the rule of
law and hence it should be free from impartiality and
external influence. Independence of the judiciary is
therefore an important pillar for the existence of rule of law.
He asserted that the courts of law and not the written
constitution are the ultimate protector of an individual’s
fundamentals.
• Exceptions to Rule of Law
• It order to cope up with the need of practical government, a
number of exceptions have been engrafted on these ideals of
rule of law provided be Dicey in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers
of the administration; many administrative tribunals have
developed; the institution of preventive detention has now
become the normal feature in many democratic countries.
• In India, dicey’s concept of rule of law cannot be said to be
followed in strict sense, there are certain exceptions provided
under the Indian Constitution and other laws. For example
• Existence of wide discretionary power to the executive-
• President and governor of this state are given wide discretionary
power in relation to certain matters under the Indian Constitution.
Under Article 72 and 161, the president and the governor
respectively have a prerogative to grant pardons, reprieves, respite
or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. Article
85 provides the president with discretion in relation to the
prorogation of either house of the parliament and the dissolution of
the house of people. The governor on the other hand has discretion
in sending the report to the president under Article 356 of the
constitution and in reserving bills for consideration under Article
200.
• Immunities and privileges-
• Under Indian constitution equality before law
doesn’t mean that the power of a private citizen
should be the same as public official. Public
officials like ministers, local authorities, public
officers and others of the like have many powers,
immunities and privileges which ordinary citizens
don’t have. For example-
• The President/Governor is not answerable to the
court of law in discharge of his executive functions.
• No criminal proceedings whatsoever can be instituted
against President or Governor of state, while he is in
office.
• No civil proceedings in which relief is claimed can be
filed against the President or Governor except after an
expiration of a 2 month notice that is served on him.
• Under International laws, the visiting heads of state,
heads of government, ministers, officials and foreign
diplomats who are posted in the country are not
subjected to jurisdiction of local courts in discharge of
their official functions.
• Rule of Law And Indian Constitution
• Under the Indian constitution the rule of law is incorporated in
many of its provisions. For example the object of achieving
equality, liberty and justice are reflected in the Preamble to the
Indian constitution. Article 14 guarantees right to equality before
law and equal protection of law.
• It states that no one shall be denied the equality before law and
the equal protection of the law by the state. The direct
connotation of these words provided under Article 14 is that the
law is supreme and there is no scope of arbitrariness as everybody
is governed by the rule of law. Law treats everybody equally
without any biases, which is the basic requirement of Rule of Law.
• In the case of Maneka Gandhi v. Union of India the
Supreme court in clear words observed that Article
14 strikes at arbitrariness in state actions and
ensures fairness and equality in treatment. Rule of
law which is the basic feature of the Indian
Constitution excludes arbitrariness. Where there is
arbitrariness there is denial of Rule of Law. Art 15,
16, 23 further strengthened the ideal of equality by
the incorporation of protective discrimination as a
means of ensuring equality amongst equals.
• Article 13 of the Indian Constitution is another example
which upheld the doctrine of Rule of Law in India.
The “laws’’ defined under Article 13 as rules, regulations,
bye-laws and ordinances can be struck down if they are
contrary to the constitution of India. In Keshavananda Bharti
v. State of Kerala, the Supreme Court has included the Rule
of Law as the basic feature of the Constitution. In this case,
though the Supreme Court upheld the amending power of
the Parliament which extends to every Article provided under
the Constitution but has limited that power by providing that
such power cannot be used in amending the basic feature of
the Constitution.
• Fundamental rights are universal and inalienable
rights. Such fundamental rights can only be protected by
the state that respects the Rule of Law. Fundamental
rights are provided under part III of the Indian
Constitution. Such Fundamental Rights cannot be
abrogated and can be enforced under Article 32 and 226
of the Constitution. The Indian Constitution is the
supreme law of the land and every law has to be in
conformity with the Constitution. If any law is in
violation of any of the provision of the Constitution,
especially the fundamental rights shall be declared void.
• The fundamental right to life and personal liberty is
provided under Article 21 of the Constitution. This
Article postulates that no person shall be deprived of
his life and liberty except by the procedure established
by law, thus making the law supreme. Such right also
guarantees that no person is convicted except for the
violation of law which is in force at the time of
commission of an offence and not for any other act.
The principle of double jeopardy and self-
incrimination is also well recognized in the Indian
Constitution.
• Article 19 which provides various freedoms to the individual
is again something which runs on the principles of Rule of
Law as these freedoms can only be curtailed on the grounds
of reasonableness which should be satisfied on the basis of
Article 14, 19 and 21 of the Constitution.
• These three articles are so essential to the Indian
Constitution that they are often called as the Golden Triangle
Articles of the Constitution. In E.P Royappa v. State of Tamil
Nadu & Another The Supreme Court held that for the state
to justify its action of curtailment of fundamental right it has
to fulfil all the requirements provided under Article 14, 19
and 21.
• Another significant derivative of rule of law
is judicial review. Judicial review is the
essential part of the rule of law. It not only
protects the constitutional principles but also
checks administrative actions and its legality.
All actions of the state authorities and
bureaucracy are all subject to judicial review
and are accountable to the courts for the
reasonableness of their actions.
• Indian Case Laws
• A.K Gopalan Vs State
• Also known as the Habeas Corpus case, the order of
detention passed during emergency was challenged in this
case on the grounds that such order is violative of the
principles of rule of law which is the basic feature of the
Indian Constitution. The issue that was before the Supreme
Court to decide was whether there is any rule of law in
India apart from Article 21 of the Constitution. The majority
bench in the case decided the matter in the negative while
Justice khanna gave a dissenting Judgement.
• He observed that the Rule of Law is accepted in
all civilised society and is considered as a symbol
of society being free. He further observed that
Rule of Law is the only means of archiving the
balance between individual liberty and public
order. Hence he was of the opinion that even if
there was no such Article like Article 21 in the
Indian Constitution the state has no power to
deprive a person of his life and liberty without the
authority of law.
• Indra Nehru Gandhi V Raj Narayan
• In this case the 39th amendment to the Constitution was
challenged which has placed the election of President,
Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law. Holding the amendment as
unconstitutional chief justice Ray found the amendment as
violative of the basic structure of the Constitution i.e., Rule
of Law. Rule of Law being anti thesis to arbitrariness does
not empower the parliament to pass a retrospective law
validating an invalid election. Such exercise of power is
opposed to the basic principles of Rule of Law.
• Modern Concept of Rule of Law
• the modern concept of the Rule of law of law is now so greatly developed
that it provides an ideal setup for any government to achieve. The concept
was developed by the International Commission of Jurist, known as Delhi
Declaration 1959, which was later confirmed at Lagos in 1961. According to
this formulation, the dignity of man as an individual is upheld.
• It implies that the rule of law should be so applied as to create conditions
in which the dignity of an individual should be given priority. The dignity of
an individual doesn’t include only the recognition of civil and political rights
but also social, economical educational cultural and developmental rights.
In Short for the proper incorporation of the Rule of law, Human Rights
mechanism should be ensured. Particularly in the content of third world
countries like India, Human Rights mechanism is utmost necessary.
• Moderating the Dicey’s meaning in the present day
context Prof. Wade has included, effective control of
and proper publicity for delegated legislation under
the concept of Rule of Law, particularly when it
imposes penalties that should as far as practicable be
defined; every man should be responsible to, the
ordinary laws whether he be a private citizen are
public official, the private man’s right should be
determined by impartial and independent tribunals
and fundamental private rights are safeguards by
ordinary laws of England.
• Conclusion
• The above mentioned judgement clearly states the evolution in the
concept of rule of law in India. The basic principles of rule of law are not
followed stricto sensu in the Indian context. It has modified the
application of rule of law from time to time to meet the exigency of the
situation.
• Rule of law is the fundamental principle of governance in any civilized
democratic country. It is the antithesis of arbitrariness. A democratic
country like India prides itself on the rule of law. When a crime is
committed a process is followed. The perpetrator is arrested, contingent
on judicial sanction. Suspects are questioned. Evidence is collected.
Interrogations are conducted. A case is built up. The court examines the
testimonies and evidence. The defendant has a right to legal defense.