Text

Introduction:
Rule of law embodies the doctrine of supremacy of law. It is a basic and fundamental
necessity for a disciplined and organized community. Rule of law is an animation of
natural law. The expression rule of law has been derived from the French phrase ‘La
Principe de legality’ (the principle of legality) which refers to the government based
on principles of law. Rule of law has no fixed or articulate connotation, though the
courts refer to this expression or phrase time and again. The rule of law is
indispensible for a democratic set of government. It is basic and fundamental
necessity for a disciplined and organized community. Law Commission of India in
one of its report (1961) had reiterated the importance of rule of law in the following
words;
‘Our constitution cannot function and no nation can march along the true democratic
way of life without a true and continuous realization of the importance of rule of law.’
Genesis of Rule of Law:
Rule of law as a concept has been in existence since times immemorial. Early
Greeks located the concept of rule of law in right reason which must inform all state
actions. Thomas Aquinas St. Augustine traced the concept in law of Gods. Hobbes,
Locke, Rousseau located it in secular traditions of social contract in which a state is
formed only to protect the life, liberty and dignity of the individual. Dicey located it in
right based liberalism and judicial review. However, Edward coke is said to be the
originator of this concept when he asserted that the king must be under god and law
and thus vindicated the supremacy of law over pretentions of executive.
In India concept of rule of law can be traced to Upanishads. It provides that law is the
king of kings. It is more powerful and rigid than the kings. There is nothing higher
than the law. By its power the weak shall prevail over the strong and justice shall
triumph. Thus in monarchy the concept of law developed in order to control the
exercise of arbitrary powers by monarchs who claimed divine powers to rule. In a
democracy the concept has assumed different dimensions and means that the
holders of public powers must be able to justify publicly that the exercise of power is
legally valid and socially just.
The term rule of law can be used in two senses.
a) Formalistic Sense: It refers to the organized power as opposed to a rule by
one man.
b) Ideological Sense: It refers to the regulation of the relationship of the citizens
and the government and in this sense; it becomes a concept of varied interest and
contents.
Dicey developed the theory of the Edward coke in his classical work ‘The Law and
the Constitution’ published in the year 1885.
Diceys Perception of Rule of Law:
According to Dicey rule of law is one of the fundamental principles of the English
Legal System. Dicey attributed the following meaning to the rule of law,
a) Supremacy of law.
b) Equality before the law.
c) Judge made constitution.
a) Supremacy of Law: Explaining the principle of supremacy of law Dicey
stated that 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, or prerogative, or even of wide discretionary
power on the part of the government. According to him the Englishman were ruled by
the law and law alone. A man may be punished for a breach of law and law alone,
but can be punished for nothing else. 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 it subjects.’’
Dicey described this principle as the central and most characteristic feature of
common law.
b) Equality before Law
Dicey stated that there must be equality before the law or the subjection of all
classes to the ordinary law of the land administered by the ordinary law courts.
Regarding equality before law, Dicey 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.’
c) Judge made Constitution
Explaining the third principle, Dicey stated that in many countries rights for instance
right to personal liberty, freedom from arrest, freedom to hold public meetings etc are
guaranteed by a written constitution in England it is not so but that does not mean
that there is no rule of law.
The above concept of rule of law as given by Dicey in 1885 reflects absolute
supremacy or predominance of law and excludes the existence of arbitrariness on
part of the government. Dicey asserted that wherever there was discretion there was
room for arbitrariness which led to insecurity of the citizens. Dicey attributed to the
concept of rule of law another significance which was “equality before the law or
equal subjection of all classes to the ordinary law of the land administered by the
ordinary law courts”. He maintained that every person was subjected to one and the
same body of law. He criticized the droit administratiff prevailing in France were
there was separate administrative tribunals for deciding the cases between the
government and the citizens.
Rule of Law under Indian Constitution:
Dicey rule of law has been adopted and incorporated in the Indian constitution. Rule
of law under constitution serves the needs of the people without infringing their
rights. The Indian constitution by and large seeks to promote rule of law through
many of its provisions for example the preamble itself enunciates the ideals of
justice, liberty and equality. In part III of the constitution these concepts are
enshrined as fundamental rights and are made enforceable. The constitution is
supreme and all the three organs of the government vis, legislative, Executive and
judiciary are subordinate and have to act in consonance with the constitution.
Absence of arbitrary power is the first essential of rule of law upon which our whole
constitutional system is based. Everyone whether individually or collectively is
unquestionably under the supremacy of law. The doctrine of judicial review is
embodied in the constitution and the subjects can approach high courts and the
Supreme Court for the enforcement of rights guaranteed under the constitution. If the
executive or the government abuses the power vested in it or if the action is
malafide, the same can be quashed by the ordinary courts of law. All laws
regulations, ordinances, bye-laws, notifications, customs and usages are laws within
the meaning of part 13 of the constitution and if they are inconsistent with or contrary
to any of the provision they can be declared as ultra vires by the Supreme Court and
by the High courts. The president is required to take an oath to preserve, protect and
defend the constitution. No person shall be deprived of his life or personal liberty
except according to the procedure established by the law. Executive and legislative
powers of the state and the union have to be exercised in accordance with the
provisions of the constitution. Government and the public officials are not above law.
The maxim ---- ‘the king can do no wrong’ does not apply in India. There is equality
before the law and equal protection of laws. Governments and public authorities are
also subjected to the jurisdiction of the ordinary courts of law and for similar wrongs
are to be tried and punished similarly. They are not immune from ordinary legal
process nor are any provisions made regarding the separate administrative courts
and tribunals. In public service also the doctrine of equality is accepted. The rule of
law forms part of basic structure of the constitution.
The broad objectives laid down in the preamble, the rights conferred and guaranteed
in part iii of the constitution, the duties imposed on the state authorities, the unity and
integrity of the Nation etc. can be secured only when the principle of rule of law is
honestly applied & observed in the governance of the country.
Judiciary and Rule of Law:
Judiciary is duty bound to uphold the constitutional values and to enforce the
constitutional limitation which is the essence of rule of law. The judiciary has to follow
the rule of law and to function within the permissible parameters. An Independent
judiciary is indispensible for a democratic setup under rule of law. While deliberating
upon the essence of rule of law Justice Bhagwati in Minerva Mills v. Union of India
A.I.R 1980(30) observed that,
‘It is a cardinal principle of our constitution that no one howsoever highly placed and
no authority howsoever lofty can claim to be the sole judge of its power under the
constitution or whether its action is within the confines of such power laid down by
the constitution. The judiciary is the interpreter of the constitution and is assigned
with the task of determining the extent of power conferred on each branch of the
government whether it is limited, and if so, what are the limit and whether any action
of that branch transgresses such limit. It is for the judiciary to uphold the
constitutional values and to enforce the constitutional limitations. That is the essence
of rule of law’.
The supreme court has put a stamp of approval on the observations made by
Douglas J, ‘law has reached its finest moments when it has freed man from unlimited
discretion of some ruler ---- where discretion is absolute, man has always suffered
’United States v. Wunderlich, 1951 and Lord Mansfield who stated in the classical
terms, discretion means sound discretion guided by law. It must be governed by rule,
not humour; it must not be arbitrary, vague or fanciful’
Bachan Singh vs. State of Punjab AIR (1982)SC 1325
Justice Bhagwati has emphasized that rule of law excludes arbitrariness and
unreasonableness. Justice Bhagwati observed that the rule of law permeates the
entire fabric of the constitution and indeed forms one of its basic features. To ensure
this he has suggested that it is necessary to have democratic legislature to make
laws, but its power should not be unfettered, and there should be an independent
judiciary to protect the citizens against the excesses of executive and legislative
power.
In the case of A.K. Karipak v. Union of India A.I.R.1970 SC 150 the court observed,
under our constitution rule of law pervades the entire field of the administration is
regulated by the rule of law. In a welfare state it is inevitable that jurisdiction of the
administrative bodies is increasing by a rapid rate. The concept of rule of law would
lose its vitality if instrumentalities of the state are not charged with the duty of
discharging their function in a just and fair manner.
In the case of Yousuf Khan Vs. Manohar Joshi (1999) SCC (Cri) 577The Supreme
Court has laid down the preposition that it is the duty of the state to
preserve and protect the law and the constitution and that it cannot permit any
violent act which may negate the rule of law.
Justice Khanna in the case of A.D.M. Jabalpur vs. S.Shukla A.I.R 1976 SC, 1207
observed----
‘Rule of law is antithesis to arbitrariness. rule of law is now the accepted norm of
all civilized societies. Everywhere it is identified with the liberty of the individual. It
seeks to maintain the opposite notions of individual liberty and public order ’
The high court of Jammu and Kashmir in the case titled as Mohammad Ashraf Malik
vs. State and others 2011(1) SLJ 291, observed that a democratic society is
governed by the rule of law---- even in extreme and adverse circumstances; the state
is to be guided by the rule of law.
Advantages and Disadvantages of Rule of Law:
Diceys concept of Rule of Law has had its advantages and disadvantages. Although
complete absence of discretionary power or absence of inequality are not possible in
this administrative age. Yet the concept of rule of law has been used to spell out
many prepositions and directions to restrain an undue increase in administrative
powers to create control over it. The rule of law has given to the countries, following
the common law system, a philosophy to curb the government’s power and to keep it
within bounds. It has provided a sort of touch stone or standard to judge and test law
prevailing in the country at a given time. Traditionally rule of law denotes absence of
arbitrary powers, and therefore, one can denounce the increase of arbitrary powers
of administration and advocate controlling through procedure and other means.
Similarly rule of law is also associated with supremacy of courts. Therefore the
courts should have power to control administrative action and any overt diminution of
that power too is criticised. Judicial control of administrative action is pivot of
administrative law in England even today. The principle implicit in the rule of law that
executive must act under law is still a cardinal principle of common law system. The
executive is regarded as not having an inherent power of its own, but all its power
flow and emanate from the law. A principle which plays a vital role in all democratic
countries of today. It also serves as basis of judicial review of administrative action.
Disadvantages of Diceys Concept of Rule of Law:
There has been negative concept of rule of law as well. A great defect in Diceys
analysis is his insistence on absence of wide discretionary powers. In other words
Dicey completely ignored the concept of discretionary powers. Grant of discretionary
powers to the Executive as well as to the Judiciary is inevitable as no law or rules or
regulations made there under may cover every aspect of human activities. The
needs of the modern government make wide discretionary powers inescapable.
Perhaps the greatest defect of concept has been misplaced trust in efficacy of
judicial control as a panacea for all evils, and somewhat irrational attitude generated
towards French system.
Dicey was factually wrong in his analysis as he ignored the privileges and immunities
enjoyed by the crown under the constitutional maxim that, ‘King can do no wrong’
and also ignored many statutes which conferred discretionary power on executive
which could not be called into question in ordinary courts. Dicey misunderstood and
miscomprehended the real nature of French droit administratiff. He thought that this
system was designed to protect officials from liability from their acts, and as such
was inferior to British System o ordinary courts deciding disputes between citizens
and the state. He also ignored the growth of administrative tribunals which had come
into existence. However it may be mentioned here that even the discretionary
powers cannot be exercised arbitrarily or capriciously.
Conclusion
Rule of law as a higher law provides an ideal which society can emulate. It thus
provides a criterion with references to which one can evaluate law and legal
structures of governance of any societies where it puts restraints on majoritarian
rule. Rule of law thus mandates that power must be made accountable governance
progressively just and equal and State incrementally ethical.
Even in most autocratic forms of government there is some law according to which
the powers of the government are exercised, but it does not mean that there is no
rule of law. Therefore, rule of law means that law rules, which is based on the
principle on of freedom and non- arbitrariness and is certain, regular and predictable.
Rule of law implies re-addressing and re-assessing the claims that Rule of law is the
supreme manifestation of human civilization. The rule of law is a viable and dynamic
concept. Rule of law has no fixed or articulate connotation; however, the broad
emphasis of rule of law is the absence of unlimited or arbitrary power in the country.
Rule of law is the supreme manifestation of human civilization and culture and is new
lingua of global moral thoughts. It is an eternal value of constitutionalism and is
inherent attribute of democracy and good governance. Rule of law is an animation of
natural law and remains as a historical ideal which makes powerful appeal even
today to be ruled by law not by powerful man.
Rule of law does not mean rule according to the statutory law pure and simple,
because such a law may it be harsh, inequitable, discriminatory or unjust. Rule of
law connotes some higher bind of law which is reasonable, just and non-
discriminatory.
In short, we can say that rule of law means that law rules. And the law which rules
that must be based on the principles of freedom, equality, non-discrimination,
fraternity, accountability and non-arbitrariness and is certain, regular and predictable.
Rule of law permeates the entire fabric of the constitution and indeed forms one of its
basic features. The concept of rule of law in India is duly recognized by the
constitution and is firmly established by the judicial pronouncements. The rule of law
is the foundation of our legal system. When the foundation shakes everything
shakes.