Rule of Law is Nothing, but the Foundation of our Basic Rights

“The rule of law should be respected so that the basic structure of our democracy is maintained and further strengthened.”- Lal Bahadur Shastri.

 Rule of Law is adapted from a French phrase, ‘la principle de legality’ which means the government works on the ethics of law, rather than norms made by men.

Rule of law means no one is above law, irrespective of any class or creed, every person is equal before the law. In an abstract, rule of law means that government authorities should exercise their power in the limit which is conferred to them by the written constitution for the protection of citizens from arbitration.

According to Black’s Law Dictionary[1]: “Rule of Law means the supremacy of regular as opposed to arbitrary power also, termed supremacy of law or the doctrine that every person is subject to the ordinary law within the jurisdiction”.

As per the rule of law, the citizens should be regulated by set laws, rather than by the decisions unilaterally made by the king for better implementation of laws, it is important to keep in mind that the rules should be universal and applied to all equally.

Under the rule of democracy, the government is considered superior to any ruler as power is distributed by the principle of natural justice.

Birth of Rule of Law

Rule of law finds its origin in thirteen century by Braxton, a judge in the kingship of Henry III   who introduced the concept of Rule of Law without mentioning it formally, He wrote:

“The king has a duty to obey God and follow the laws because the law makes him King.”[2]

Rule of law is the basic principle of the British Constitution. The doctrine is well accepted in almost all democracies.

The British people believed in the Divine power of God, that Supreme Authority (God) gave the power to King to rule the people. This theory says that “No harm can be done to the king; he is above the laws”. This theory was criticized by Coke for the first time.

The creator of this principle is Sir Edward Coke – Chief Justice in King James I’s reign. He successfully maintained that the king is inferior to God and he acknowledged the supremacy of law against the king. Later on, A.V. Dicey in his book “The law and the constitution” (1885) develop his theory on Rule of Law. He attributed three distinct meaning to the Rule of Law[3].Therefore, the word rule of law means the supremacy of law over the government.

Three principles propounded by A.V Dicey are the following:

1.The supremacy of Law or Absence of arbitrary power

2.Equality before Law

3.Judge-made Constitution or Predominance of Legal Spirit

Dicey’s Rule of Law consists of the following 3 meanings

  1. The supremacy of Law or Absence of Arbitrary power:

Dicey states that law is supreme and no man is above law, neither any man is can be punished except for distinct breach of the law which could be established legally in ordinary courts.

Dicey said that Englishmen were ruled by the law and law alone. A man can be punished only for breach of and nothing else.[4]

In his words, he said, “Where there is discretion, there is room for arbitrariness”. No man can be unlawfully detained or arrested, in body or goods except by the procedure given in law.

  • Equality before Law

According to Dicey, there must be equality of law and equal protection law subjected to all classes administered by ordinary law of land.

In Dicey’s work, a lot of criticism can be found regarding the French legal system of ‘droit administratiff’ in which there were distinct administrative tribunals for deciding cases between the officials of the state and the citizens. All persons were subject to the same law in England and there were no separate courts for officials. According to Dicey the exemption of officials from the jurisdiction of the ordinary courts was a negation of equality.

  •  The judge made the Constitution or Predominance of Legal Spirit 

Dicey mentioned that in many countries, rights are guaranteed to citizens by a codified constitution, but in England, the rights are ensured based on judicial Pronouncements, which have emerged between the parties. As a mere embodiment of certain rights in the codified constitution is of little value as it can be easily exploited by the people.

Merits of the Doctrine given by Dicey

The doctrine of the rule of law is based on the basic objective of administrative law is to control the excessive or arbitrary powers exercised by executive authorities. The objective of keeping administrative authorities in control can be achieved by following the standards of legality given by ordinary courts.

  1. The first principle i.e. Supremacy of Law recognizes a fundamental rule of democracy that every governmental authority is subordinate to law and it is against the arbitration.           
  2. The second Principle i.e. Equality before the law is based on the idea that all are equal before the law.
  3. The Third principle i.e. predominance of legal spirit puts significance on the role of courts in enforcing and protecting human rights regardless of their incorporation in a written constitution.   Hence, the constitution is not a source of rule of law but, the effect of individual rights.  

Demerits of the Doctrine given by Dicey

It has been said that the rules declared by Dicey and accepted in English legal system was the result of “Political Struggle” and not “Logical deductions from a rule of law”[5].

  1. Dicey’s first rule was criticized on the ground that he equated supremacy of law with the absence of arbitrary power. The welfare state cannot function effectively without exercising discretionary powers.
  2. The second Principle propounded by Dicey was also criticized. Dicey misunderstood the real nature of droit administratiff.

Modern Concept of Rule of Law

In today’s time, Dicey’s theory cannot be accepted in totality as he saw the benefit in the absence of discretionary power and believed in dominance by “Laissez-Faire” thinking. Davis gave seven reformed definitions of “rule of law”:

1). Law and order,

2). Established rules

3). Omission of discretion

4). The need for law or fairness

5).  Cognizance of the principle of natural justice

6). Formation of administrative courts and tribunals with Appointment of Judges

7). Judicial Review of administrative authorities

So, it can be said that rule of law doesn’t mean dictatorship by the government, but governance in a democratic way.

Rule of Law in India

In India, the concept of Rule of Law can be traced back to ancient times. In old times, God was considered superior to the kings and they believed in the divine theory of God. Thus, to control the arbitrary powers exercised by the king’s rule of law was introduced.

The Indian constitution was drafted on the basic foundation of the Rule of Law. The Preamble itself talks about the ideals of justice, liberty and equality. Part III of the Constitution is enshrined with the fundamental rights and are made enforceable. The Constitution protects the Independence of Judiciary by giving the power of judicial review under Article 32 and 226. All rules, regulations, ordinances etc. are laws within the meaning of Article 13[6] and if they are inconsistent with or contrary to the provisions of thereof, they can be declared ultra vires by the Supreme Court or High Courts. The principle of equality before the law as enumerated by Dicey is incorporated in Article 14[7], which guarantees the right of equality before the law and equal protection of laws. Article 20, 21, and 22 upholds the dignity of every person.[8]. The rule of law is treated as the basic structure of the constitution.

Rule of Indian Judiciary

There is plenty number of cases where the concept of rule of law in India came into light which are:

  1. In Chief Settlement Commissioner; Punjab v. Om Prakash,[9] in this case, the Supreme Court found that rule of law is the central and basic feature of the constitution which means that the courts can test the administrative actions by the standards of legality.
  2. In ADM Jabalpur v Shivkant Shukla[10] in this case, the Apex court held that even in the suspension of Article 21 during the time of emergency the State cannot abridge citizens right to life and personal liberty.
  3. In Kesavanda Bharti vs. the State of Kerala (1973)[11] the Supreme Court enunciated that Rule of law comes in the ambit of the basic structure of the constitution.
  4. In Indira Nehru Gandhi v. Raj Narain[12] it was held that the principle of Rule law embodied in Article 14 is the basic feature of the Indian Constitution, hence no amendment made under Article 368, can destroy its importance.

Conclusion

The Rule of Law is an idea about Equity, Justice and Good Conscience. As Wade said, the government should not be the subject of law, rather than the law should be the subject to the government. Rule of law excludes Arbitrariness and postulates Knowledge without passion and purpose without will.                                     


[1]  Bryan A. Garner, Henry Campbell Black, Blacks law dictionary, St. Paul, Minn.: West Group, 1332, 7 editions [1999]

[2] A V Dicey, Introduction the Study of The Law of The Constitution1835-1922, (Macmillan 1915)

[3] C.K TAKWANI, Lectures on Administrative Law (Eastern Book Company, Lucknow 6th edition,2017)

[4] The Law of the Constitution (1915) 202.

[5] Paxton, Textbook of Jurisprudence 346, (4th Edn)

[6] Article 13 of The Constitution of India, 1950

[7] Article 14 of the Constitution of India, 1950

[8] Article 20,21,22 of the Constitution of India

[9] 1969 AIR 33, 1968 SCR (3) 655

[10] AIR 1967 SC 1207

[11]  (1973) 4 SCC 225)

[12] AIR 1975 SC 2299

Komal Kinger from Centre for Legal Studies Gitarattan International Business School, Rohini

Komal is a happy-go-lucky person with big aspirations to achieve gratification. Determined,Hardworking and career oriented in her field of knowledge


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