RULE OF LAW

The doctrine of rule of law has its origin in England and it is one of the
fundamental characteristics of the British constitutional system. It lays down that
the law is supreme and hence the government must act according to law and
within the limits of the law. It is the legal principle that law should govern a
nation, as opposed to being governed by arbitrary decisions of individual
government officials. It primarily refers to the influence and authority of law
within society, particularly as a constraint upon behavior, including behavior of
government officials.

A V Dicey in his book The Law of the Constitution (1885) has given the

following three implications of the doctrine of rule of law.

1. Absence of arbitrary power, that is, no man is punished except for a

breach of law
2. Equality before the law, that is, equal subjection of all citizens (rich or
poor, high or low, official or non official) to the ordinary law of the land
administered by the ordinary law courts
3. The primacy of the rights of individual, that is, the constitution is the
result of the rights of the individual as defined and enforced by courts of law,
rather than constitution being the source of the individual rights
Most legal theorists believe that the rule of law, popularized in 19th century, has
purely formal characteristics, and possess the characteristics of generality,
equality, and certainty, but there are no requirements with regard to the content
of the law and protection of individual rights.

Today Dicey's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. Accordingly - "The rule of law implies that the functions of
the government in a free society should be so exercised as to create conditions in
which the dignity of man as an individual is upheld. This dignity requires not only
the recognition of certain civil or political rights but also creation of certain
political, social, economical, educational and cultural conditions which are
essential to the full development of his personality".
 The relevance of the Rule of Law is demonstrated by application of the
following principles in practice:

 The separation of powers between the legislature, the executive and the
judiciary.
 The law is made by representatives of the people in an open and
transparent way.
 The law and its administration is subject to open and free criticism by the
people, who may assemble without fear.
 The law is applied equally and fairly, so that no one is above the law.
 The law is capable of being known to everyone, so that everyone can
comply.
 No one is subject to any action by any government agency other than in
accordance with the law and the model litigant rules, no one is subject to any
torture.
 The judicial system is independent, impartial, open and transparent and
provides a fair and prompt trial.
 All people are presumed to be innocent until proven otherwise and are
entitled to remain silent and are not required to incriminate themselves.
 No one can be prosecuted, civilly or criminally, for any offence not known to
the law when committed.
 No one is subject adversely to a retrospective change of the law.
Rule of Law and Indian Constitution 

In India the Constitution is supreme. The preamble of our Constitution clearly

sets out the principle of rule of law. It is sometimes said that planning and welfare
schemes essentially strike at rule of law because they affect the individual
freedoms and liberty in many ways. But rule of law plays an effective role by
emphasizing upon fair play and greater accountability of the administration. It
lays greater emphasis upon the principles of natural justice and the rule of
speaking order in administrative process in order to eliminate administrative
arbitrariness.

Important Components of Rule-of-Law Reforms

a) Court Reforms 
 The efficiency of the courts is an important component in rule-of-law
reforms as the existence of a judiciary is a fundamental aspect of the rule of law. 
 To increase accountability and transparency, information technology
systems may be installed to provide greater public access. To increase
independence of the courts, the government can provide them with funding that
will allow them to make their own financial and administrative decisions.
 Recent aggressive judicial activism can also be seen as a part of the efforts
of the Constitutional Courts in India to establish rule-of-law society, which implies
that no matter how high a person, may be the law is always above him. Court is
also trying to identify the concept of rule of law with human rights of the people.
The Court is developing techniques by which it can force the government not only
to submit to the law but also to create conditions where people can develop
capacities to exercise their rights properly and meaningfully. However, separation
of powers should be maintained.
b) Legal Rules 

 Another important rule-of-law reform goal is to build the legal rules. As

Fuller stated, “laws must exist.”
c) Institutional Encouragement on the Global Level 

 To encourage additional country-specific development, in the early 1990s

the World Bank and the International Monetary Fund (IMF) began conditioning
financial assistance on the implementation of the rule of law in recipient
countries. These organizations had provided aid to support initiatives in
legislative drafting, legal information, public and legal education, and judicial
reforms, including alternative dispute resolution. By conditioning funds on the
establishment of the rule of law, the World Bank and the IMF also hope to reduce
corruption, which undermines economic development by scaring away investors
and preventing the free flow of goods and capital. Currently, in its Sustainable
Development Goals (SDG), the United Nations (UN) also champions the rule of
law as a vehicle to bring about more sustainable environmental practices.
Conclusion 

Rule of law is mostly believed to be a modern concept which is a gift of

democracy however it is something which is fundamental to the very basic idea of
good governance
We need to focus on the weaknesses and loopholes so that we can remove or plug
them. Having said this, we cannot resist ourselves from adding that it is not that
only the three organs of the State are to be blamed for the dismal state of rule of
law in the society. Other actors like the media, civil society and even the ordinary
citizen cannot run away from their respective responsibilities. Therefore it is
equally important that all the actors of the society ensure for the maintenance of
Rule of Law.

Rule of Law in India

 The principle of Rule of Law is indispensable to any legal and political system. It
imbibes the notions of fairness, equality and non-arbitrariness. The origin of the
principle can be traced back to ancient Greece, where it was largely positive. It
gradually developed in Rome to include negative traditions as well.
An authoritative interpretation was given by A.V. Dicey, who suggested a three-
pronged definition of the principle. But his conception is not without flaws. In
India, Rule of Law is embodied in the Constitution- in the ideals enshrined in the
Preamble and in Part III. Over time, the Constitution has been interpreted by the
judiciary in a manner so as to afford a liberal interpretation to the principle. Rule
of Law has been held to mean due process and a just, fair and non-arbitrary
procedure. This has been given effect through the principle of separation of
powers that prevents one organ of the government form over-reaching and acting
in an arbitrary manner, by creating a system of checks and balances. However,
any encroachment or adverse action on the part of one organ, severely
undermines the principle of Rule of Law.” 

Introduction

The term ‘Rule of law’ is a phrase that is very commonly used whenever law is
being studied. It is derived from the French phrase ‘la principe de legalite’ which
means the ‘principal of legality’. It refers to ‘a government based on principles of
law and not of men’. In other words, the concept of ‘la Principe de legalite’ is
opposed to arbitrary powers. ‘Rule of Law’  as defined by Dicey, means “the
absolute supremacy or predominance of regular law as opposed to the influence
of arbitrary power and excludes the existence of arbitrariness, of prerogative, or
even wide discretionary authority on the part of the government.”[i]

The concept of rule of law is a very dynamic concept, capable of interpretations to

enable the successful working of a democracy. In simple terms, Rule of Law is the
restriction on the arbitrary exercise of power by subordinating it to well-defined
and established laws. Law should govern the nation and not the arbitrary
decisions by individuals. Thus, Rule of Law embodies the doctrine of supremacy of
law.
Origin of Rule of Law

Rule of Law is as old as civilization. Times and society have changed the
perceptions of various authors resulting in different and varied definitions and
approaches to Rule of Law. Many accounts of the rule of law identify its origins to
classical Greek thought, quoting passages from Plato and Aristotle. Greek ideas
with respect to the rule of law are therefore best understood in the form of
exemplary models, providing inspiration and authority for later periods.[ii] The
Roman contribution to the rule of law tradition was negative as well as positive,
with the negative tradition being of much greater consequence [iii].

The Germanic customary law proposition that the king is under the law has been
widely identified as an independent source of the rule of law in the medieval
period [iv]. The Magna Carta, 1215 although it stands on its own as a historical
event with reverberating consequences in the rule of law tradition, epitomized a
third Medieval root of the rule of the law- the effort of nobles to use law to
restrain kings [v]. Then came the Liberalist and Federalist approaches to Rule of
Law. Locke’s design involved a limited delegation of power, for some purposes,
from individuals to the government, revocable by them if the government failed to
meets its obligations. He specified a separation of powers between legislature and
executive – though not a separate judiciary – to assure that the government acts
according to duly enacted standing laws [vi]. And he argued that absolute
monarchy is inconsistent with civil society because such a monarch would judge
his own cases, continuing in a state of nature in relation to the people. Finally,
consistent with the consensual nature of the civil society, Locke held that
legislation should be established by majority vote [vii].

In this backdrop, following Montesquieu approach, in the year 1885, A.V. Dicey
on observing the UK model laid down three principles to be arising out of Rule of
Law[viii].

1. Supremacy of Law;
2. Equality before the law;
3. Predominance of Legal Spirit.

In France, Dicey observed that the government officials exercised wide

discretionary powers and if there was any dispute between a government official
and a private individual, it was tried not by an ordinary court but by a special
administrative court. The law applicable in that case was not ordinary law but a
special law developed by the administrative court. From this, Dicey concluded
that this system spelt the negation of the concept of rule of law. He felt that this
was against the principle of equality before the law. He also stated that all
English are bound by the Rule of Law and there is no external mechanism
required to regulate them. Therefore, he concluded that there was no
administrative law in England [ix].
Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law
imposed and helped in imbibing a sense of restraint on administration. The
government was bound to work within the legal framework. Further, by stating
that the law is supreme, he made every law made by the legislature supreme,
thus, promoting parliamentary supremacy. There cannot be self-conferment of
power as even an ordinary law is supreme. All laws, public or private, are being
administered by the same set of independent and impartial judiciary. This ensures
adequate check on the other two organs. Nonetheless, on the other hand, Dicey
completely misunderstood the real nature of the French droit administratif. He
thought that this system was designed to protect officials, but the later studies
revealed that in certain respects it was more effective in controlling the
administration than the common law system. The reality is that French Conseil d’
Etat is widely admired and has served as model for other countries as well as for
court of justice for European communities[x]. He also did not realise the need for
codification of laws which could lead to more discretion, thus hampering Rule of
Law.

Rule of Law in India

The concept of Rule of Law permeates into the Indian Legal System through the
Constitution. Part III of the Constitution of India acts as a restraint on the various
organs exercising powers. While conferring the rights on the citizens, it imposes
restrictions on the power that can be exercised. Under our Constitution, we have
adopted the British System of Rule of Law. Absence of arbitrary power is the first
essential of Rule of Law upon which our whole constitutional system is based.
[xi] Governance must be by rule, and not arbitrary, vague and fanciful.[xii] Under
our Constitution, the Rule of Law pervades over the entire field of administration
and every organ of the state is regulated by Rule of Law. The concept of Rule of
Law cannot be upheld in spirit and letter if the instrumentalities of the state are
not charged with the duty of discharging their function in a fair and just manner.
[xiii]

Judiciary and Rule of Law:

The Indian Judiciary has played an instrumental role in shaping Rule of Law in
India. By adopting a positive approach and dynamically interpreting the
constitutional provisions, the courts have ensured that the Rule of Law and
respect for citizens’ rights do not remain only on paper but are incorporated in
spirit too.

In the case of A.D.M. Jabalpur v. Shiv Kant Shukla[xiv], KHANNA, J. observed:

“Rule of Law is the antithesis of 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 a balance between the opposing
notions of individual liberty and public order.”
In Bachhan Singh v. State of Punjab[xv], it was held that the Rule of Law has
three basic and fundamental assumptions. They are:-

1) Law making must be essentially in the hands of a democratically elected

legislature;

2) Even in the hands of the democratically elected legislature, there should not be
unfettered legislative power; and

3) There must be independent judiciary to protect the citizens against excesses of

executive and legislative power.

The first case which stirred a debate about Rule of Law was Shankari
Prasad v. Union of India [xvi], where the question of amendability of fundamental
rights arose. The question lingered and after witnessing the game play between
the government and the judiciary, the issue was finally settled in the case
of Kesavananda Bharati v. State of Kerala [xvii]. In this case, the Hon’ble
Supreme Court held that the Rule of Law is the “basic structure” of the
Constitution. The Hon’ble Supreme Court by majority overruled the decision
given in Golak Nath’s case [xviii] and held that Parliament has wide powers of
amending the Constitution and it extends to all the Articles, but the amending
power is not unlimited and does not include the power to destroy or abrogate the
basic feature or framework of the Constitution. There are implied limitations on
the power of amendment under Art 368, which are imposed by Rule of Law.
Within these limits Parliament can amend every Article of the Constitution.
Justice H R Khanna played a vital role in preserving the Rule of law although he
concurred with the majority decision.

In the case of Indira Nehru Gandhi v. Raj Narayan [xix], the Apex Court held that
Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of
the Indian Constitution and hence it cannot be destroyed even by an amendment
of the Constitution under Article 368 of the Constitution. Article 329-A was
inserted in the Constitution under 39th amendment, which provided certain
immunities to the election of office of Prime Minister from judicial review. The
Supreme Court declared Article 329-A as invalid, since it was clearly applicable
only to the then current prime minister and was an amendment to benefit only
one individual. It was decided that the law of the land is supreme and must
prevail over the will of one person.

In the case of Maneka Gandhi v. Union of India[xx], the Hon’ble Supreme Court

established the Rule of Law that no person can be deprived of his life and
personal liberty except procedure establish by law under Article 21 of the
Constitution. Thus, Article 21 requires the following conditions to be fulfilled
before a person is deprived to his life and liberty:

1. That there must be a valid law.

 2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.

The Supreme Court observed in Som Raj v. State of Haryana [xxi], that the

absence of arbitrary power is the primary postulate of Rule of Law upon which
the whole constitutional edifice is dependant. Discretion being exercised without
any rule is a concept which is antithesis of the concept.

Another facet of Rule of Law in India is the independence of judiciary and power
to judicial review. The Supreme Court in the case Union of India v. Raghubir
Singh[xxii] that it is not a matter of doubt that a considerable degree of principles
that govern the lives of the people and regulate the State functions flows from the
decision of the superior courts. Rule of Law as has been discussed postulates
control on power. Judicial review is an effective mechanism to ensure checks and
balances in the system. Thus, any provision which takes away the right to judicial
review is seen to go against the very fiber of Rule of Law. In the case of S.P.
Sampath Kumar v. Union of India [xxiii], the courts have reiterated that judicial
review is part of the basic structure of the Constitution.

In India, the meaning of rule of law has been expanded. It is regarded as a part of
the basic structure of the Constitution and, therefore, it cannot be abrogated or
destroyed even by Parliament. The ideals of the Constitution- liberty, equality and
fraternity have been enshrined in the preamble. Constitution makes the supreme
law of the land and every law enacted should be in conformity to it. Any violation
makes the law ultra vires. Rule of Law is also reflected in the independence of the
judiciary.

The Darker Side of Rule of Law

The case of ADM Jabalpur Shivakant Shukla[xxiv] is one of the most important

cases when it comes to rule of law. In this case, the question before the court was
‘whether there was any rule of law in India apart from Article 21’. This was in the
context of suspension of enforcement of Articles 14, 21 and 22 during the
proclamation of an emergency. The answer of the majority of the bench was in
negative for the question of law. However Justice H.R. Khanna dissented from the
majority opinion and observed that “Even in absence of Article 21 in the
Constitution, the state has got no power to deprive a person of his life and liberty
without the authority of law. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to
have any meaning…” The majority judges could not take a firm stand and
interpreted the supremacy of law to mean supremacy of the law of the land and
not supremacy of the constitutional spirit which is rule of law.

The question of encroachment of the judiciary over the other organs of the
government in the name of activism always persists. The extent to which the
courts can limit the exercise of other organs is to be pondered upon. The principle
of Rule of Law does not also allow the self- conferment of power by the judiciary.
The court’s interpretation and judgments are never solely adequate to ensure the
observance of Rule of Law. Corruption, fake encounters, unfair policies all
undermine rule of law.[xxv]

The main characteristic of the concept of rule of law is ‘equality’. This itself has
been criticized widely. The government possesses the inherent authority to act
purely on its own volition and without being subjected to any checks or
limitations. Total equality is possible to prevail in general conditions, not only in
India but in any country for that matter. For e.g.: no case can be filed against the
bureaucrats and diplomats in India and the privileges enjoyed by the members of
parliament with respect to legal actions against them.

Conclusion

The Hon’ble Supreme Court of India has expanded Article 21 to include in its
broad interpretation right to bail, the right to a speedy trial, immunity against
cruel and inhuman punishment, the right to dignified treatment in custodial
institutions, the right to legal aid in criminal proceedings and above all the right
to live with basic human dignity. It has also established new doctrines, such as,
public trust doctrine, doctrine of promissory estoppel, doctrine of absolute
liability, and host of principles such as polluter’s pay principle, etc. and offered
guidelines in cases where no there were no legislations, i.e., sexual harassment at
work places, and most importantly laid down the foundation of Public Interest
Litigation. The vast jurisprudence that has been developed by the courts is to
ensure that state is bound by its welfare functions and the rights of none are
abridged by a tyrant hand.

Any act, inaction or abuse of such powers by one organ calls for interference of
the other organ. The judges are not to act upon the laws which are against
humanity or based on unreasonable classification or are arbitrary in nature or are
against the moral principles; even if such laws are passed by the Parliament. They
are to bring in interpretations of laws that are in tune with the principles
enshrined in the Constitution. However, there have been instances of the
judiciary being marred by corruption and to tackle judicial corruption; it is
needed to keep judiciary out of the influence and control of the Legislative or
executive. There is also the need for a speedy justice delivery system.

Similarly, Parliament is to keep in mind that the laws made by it are not against
the rule of law, or against the Constitution or public moral and humanity. It
should also from time to time keep an eye on the social changes and scientific
advancement so that the laws meet the demands of the time. Article 105(2) of the
Constitution must be amended because it promotes and protects the corruption or
Horse trading in Parliament which is against the notion of democracy and Rule of
Law. The Executive should also refrain from executing the laws which are against
natural justice or in violation of the rights; liberties and freedom of common man
or is against the state or constitution in particular. This is the doctrine of Self
-Restraint, whereby, all the organs try to fulfill the aspirations of the nation and
uphold the rule of law, without interfering into the domain of the other.

The Constitution must in all circumstances be considered supreme, and the laws
made by the legislature should pass the test of reasonableness and the objectives
of the Constitution. If any organ of the Government crosses its limits or
encroaches upon the powers of the other organs or exceeds its jurisdiction, the
act shall be considered as invalid and any abuse of law or any action shall be
termed as void ab initio; and the principle of checks and balance will come into
play to ensure the sustenance of the principle of Rule of Law.

[1] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; Air

India v. Nergesh Meerza, (1981) 4 SCC 335; D.K. Basu v. State of West Bengal,
(1997) 1 SCC 416; PUCL v. Union of India, (1997) 3 SCC 433

[i] Dicey, A.V., THE LAW OF THE CONSTITUTION 198 (8th Ed.)

[ii] The overarching orientation of Athenians was toward the polis, the political

community. Every male citizen over thirty years of age, of whatever class or
wealth, was eligible to serve (for pay) on juries that decided legal cases; they also
served as magistrates, on the governing Council (with a rotating head), and on
legislative assemblies, with positions filled by lot. To insure accountability,
magistrates presiding over cases could be charged with violations of the law by
complaints from private citizens. Owing to these characteristics, “democracy was
synonymous for the Athenians with the ‘rule of law.’” Athens did not have a class
of legal professionals or state officials who monopolized the production of law or
the delivery of legal services. Law was – literally – the product of the activities of
its citizens. Equality before the law was an important value in their system.

[iii] Cicero, THE REPUBLIC AND THE LAWS, translated by Niall Rudd (Oxford:

Oxford Univ. Press 1998), The Republic, Book Two, 48, p. 50.

[iv] Kern, KINGSHIP AND LAW IN THE MIDDLE AGES, p. 182.

[v] William H. Dunham, “MAGNA CARTA AND BRITISH CONSTITUTIONALISM,”

in The Great Charter, Introduction by Erwin N. Griswold (New York: Pantheon
1965) p. 26.

[vi] Locke, SECOND TREATISE OF GOVERNMENT, p. 47 (ss. 88–89); p. 65–66

(ss. 123–24).

[vii] Ibid., p. 52 (ss. 95–96).

[viii] Supra Note 1.
[ix] Jain & Jain, PRINCIPLES OF ADMINISTRATIVE LAW, 2013 (6th Ed.)

[x] Brown & Bell, FRENCH ADMINISTRATIVE LAW, 4th Ed.

[xi] S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427; Godavarman v. Ashok

Khot, (2006) 5 SCC 1.

[xii] John Wilkes, in Re, (1770) 4 Burr 2528.

[xiii] A.K. Kraipak v. Union of India, AIR 1970 SC 150.

[xiv] AIR 1976 SC 1283.

[xv] AIR 1980 SC 898.

[xvi] AIR 1951 SC 455.

[xvii] AIR 1973 SC 1461.

[xviii] 1967 SCR (2) 762.

[xix] 1975 SCC (2) 159.

[xx] AIR 1978 SC 597.

[xxi] 1990 SCR (1) 535.

[xxii] 1989 SCR (3) 316.

[xxiii] 1987 SCR (3) 233.

[xxiv] Supra Note 14.

[xxv] P V Narasimha Rao v. State, AIR 1998 SC 2120; Indra Sahwney v. Union of

India, AIR 1993 SC 477.