Rule of Law

In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens
from arbitrary and abusive use of government power.

The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a government based on principle of Law and not of men.

British people strongly believed in the Divine Theory of State. The king was given the power to
govern the people by the Divine Authority (God). This theory propagates that, King can do no
wrong, king is above law.

Parliamentary Democracy based on the principle of equality rooted in Britain. All persons are
governed by the same law and same set of rules and regulations is called the Rule of Law.

The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the
time of King James I. Coke was the first person to criticise the maxims of Divine Concept. He
strongly believed that the King should also be under the Rule of Law. The Rule of Law doctrine
was later developed by A.V. Dicey in his book, Introduction to the Law of Constitution (1885)

Dicey evolved the concept of Rule of Law while he was delivering lectures to the law students in
Oxford University, England. The concept of Rule of Law can be traced from the time of the
Romans, who called it ‘Just Law’, to the Medieval period where it was called the ‘Law of God.’
The social jurists, such as Hobbes, Locke and Rousseau, called the Rule of Law as the Natural
Law.

Doctrine of Rule of Law

According to Dicey, the Rule of Law is one of the fundamental principles of the English Legal
System. In his book, ‘The Law of the Constitution’, he attributed the following three meanings to
the said doctrine:

1. Supremacy of law;
2. Equality before law; and
3. Predominance of legal spirit or Judge – made Constitution

Application of Doctrine

In England, the doctrine of the rule of law was applied in concrete cases. If a man is wrongfully
arrested by the police, he can file a suit for damages against them as if the police were private
individuals.

In Wilkes v. Wood, it was held that an action for damages for trespass was maintainable even if
the action complained of was taken in pursuance of the order of the Minister.

In the leading case of Entick v. Carrington, a publisher's house was ransacked by the King’s
messengers sent by the Secretary of State. In an action for trespass, £300 were awarded to the
publisher as damages.

Merits

It rightly opposes arbitrary and unfettered discretion of governmental authorities, which has
tendency to interfere with rights of citizens and also recognizes a cardinal rule of democracy that
every Government must be subject to law and not law subject to the Government

Principle of Equality was given importance . It is based on the well-known maxim -"However
high you may be, Law is above you", and "All are equal before the law."

The third principle puts emphasis on the role of judiciary in enforcing individual rights and
personal freedoms irrespective of their inclusion in a written Constitution. Dicey feared that mere
declaration of such rights in any statute or in Constitution would be futile if they could not be
enforced.

Criticism

According to him, ‘wherever there is discretion, there is room for arbitrariness.’ He thus failed to
distinguish arbitrary power from discretionary power.

Dicey misunderstood the real nature of droit administratif. He carried an impression that
administrative courts of France, including Counseil d’état conferred on Government officials
special rights, privileges and prerogatives as against private citizens. But it was not so. The
French system in many respects proved to be more effective in controlling abuse of
administrative powers than the Common Law system. Counseil d’état technically speaking was a
part of administration, but in substance and in reality, it was very much a court. The actions of
administration were not immune from the judicial scrutiny of the Counseil, which consisted of
‘real Judges’.

The Crown enjoyed immunity under the well-known maxim ‘The King can do no wrong'. It was,
therefore, not correct to say that there was ‘equality before law' in stricto sensu even in England.
. The sovereign immunity was abolished by the 'Crown Proceedings Act, 1947.

Rule of Law in India

In order to develop Indian democracy, rule of law has played a great role. At the time of framing
of Constitution, the framers had two options i.e. USA and England. Some of the provisions were
adopted from USA and some of them were adopted from England. Rule of law was adopted from
England by our constitutional fathers and many provisions were incorporated in the Indian
Constitution. Indian Constitution is considered to be supreme and no one is above Indian
Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined
in Part III of the Indian Constitution.

Bachan Singh V. State of Punjab, A.I.R. 1982 SC 1336 “ Rule of law permeates the entire
fabric of the Indian Constitution and indeed forms one of its basic features.

Som Raj v. State of Haryana In this case it was held that the absence of arbitrary power is the
postulate of rule of law upon which the whole constitutional edifice is dependent.

In Keshavananda Bharti v. State of Kerala , the Supreme Court states that “Our Constitution
postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to
arbitrariness.” The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic
structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.

Chief Settlement Commissioner, Punjab v. Om Prakash In this case, Supreme Court