Rule of Law

The rule of law is a fundamental principle that underpins the functioning of a just and orderly
society. It represents the idea that all individuals and entities, including government officials
and institutions, are subject to and accountable under the law. The rule of law is essential for
ensuring justice, protecting individual rights, and maintaining a stable and fair society.
Sir Edward Coke provided that King should be under Gods and Laws. He further stated that a
person should be only punished for breach of law and that breach should be investigated and
proved in a legal manner. He carried out the conceptualization of the concept of Rule of Law.
Later A V Dicey further developed the concept and held that no one should be above the law.
Dicey’s perception of the rule of law was introduced in his book Introduction to the Study of
the Law of the Constitution. According to Dicey, in line with the concept of Parliamentary
Sovereignty, the rule of law is one of the twin pillars of the British Constitution. He gave three
different aspects of Rule of Law. They are:
1. Supremacy of Law
2. Equality before Law
3. Predominance of Legal Spirit

1. Supremacy of Law:
The first aspect indicates that Law is supreme. No man is punishable or can be lawfully made
to suffer in body or deprived of their goods unless they had violated the law which has been
established in an ordinary way and applied by an ordinary court. There is also an absolute
supremacy or predominance of regular law over arbitrary power and the state could not act in
an arbitrary manner which was unlawful.
2. Equality before Law
The second aspect of Dicey’s conception of the rule of law indicates that in terms of the equality
before the law, no man is above the law. Regardless of what an individual’s rank or condition
is, he is subjected to the ordinary law of the realm and be bounded to the jurisdiction of the
ordinary tribunals. As a result, no matter an ordinary private citizen or a state official breached
the same law, they would be treated in the same way. It denoted that the state officials were
not given any special privileges or protections from the law of the land. Thomas Fuller had also
quoted that “Be you ever so high, the law is above you.”
3. Predominance of Legal Spirit
The third aspect focusses on the need of Independent and impartial courts to provide complete
justice. It denotes that the principles of the constitution are the result of the ordinary law of the
land. Dicey stated that Britain had a court-based constitution (in effect, a common law
constitution), in the sense that decisions made by the judges directly resulted the principles of
the constitution which concerning the rights of private persons. This reveals Dicey’s belief that
the common law affords greater protection to the citizens than a written constitution.
Dicey’s Concept has been criticised as he disapproved the institutions of Droit administratiff.
He was detrimental regarding the growth of administrative law. Even though he emphasized
on the Equality before Law, the maxim “the king can do no wrong” was prevalent that time.

Modern Concept
Today Diecy’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. This
concept was developed by the International Commission of Jurists. Known as Delhi
Declaration, 1959 which was later on confirmed at logos in 1961. According to this
formulation- “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
the creation of certain political, social, economic, educational and cultural conditions which
are essential to the full development of his personality”. According to Davis, there are seven
principal meanings of the term “Rule of law:
(1) law and order;
(2) fixed rules;
(3) elimination of discretion;
(4) due process of law or fairness;
(5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and
(7) Judicial review of administrative actions.
So finally, it may correctly be said that rule of law does not mean and cannot mean any
government under any law.
The lecture entitled ‘The Rule of Law’ was given by Lord Bingham in the House of Lords on
16 November2006. Lord Bingham outlined 8 sub-rules which he believed comprised the rule
of law and these 8 principles enunciated by Lord Bingham had been regarded as the modern
version of the rule of law. Lord Bingham declared that “the core of the existing doctrine of the
rule of law was that all public and private persons should be bound by and entitled to the benefit
of laws publicly and prospectively issued and publicly administered by the courts.” The view
of Lord Bingham could be said as filling in the gaps of Dicey’s conception as it is more modern
and concerning the latest issue. The 8 principles are as below:
1) The law must be accessible so far as possible, intelligible, clear and
predictable.
2) Questions of legal right and liability should generally be decided by
application of the law and not the exercise of the discretion.
3) The law must apply equally to everyone, unless differences can be justified.
4) The law must provide appropriate protection of essential and basic human
rights.
5) The parties in civil disputes must be able to resolve disputes without facing
a huge legal cost or excessive delays.
6) The executive must use the powers given to them reasonably, in good faith,
for the proper purpose and must not exceed the limit s of these powers.
7) There must be adjudicative procedural fairness.
8) The state must comply with the obligations of international law which
whether deriving from treaty or international custom and practice governs
the conduct of nations.

The World Justice Project (WJP) is an independent, multidisciplinary organization working to

create knowledge, build awareness, and stimulate action to advance the rule of law worldwide.
They provide 4 basic tenets for Rule of Law. That are:
1) Accountability: The government as well as private actors are accountable
under the law.
 2) Just Law: The law is clear, publicized, and stable and is applied evenly. It
ensures human rights as well as property, contract, and procedural rights.
3) Open Government: The processes by which the law is adopted,
administered, adjudicated, and enforced are accessible, fair, and efficient.
4) Accessible and Impartial Justice: Justice is delivered timely by competent,
ethical, and independent representatives and neutrals who are accessible,
have adequate resources, and reflect the makeup of the communities they
serve.
Effective rule of law reduces corruption, combats poverty and disease, and protects people
from injustices large and small. It is the foundation for communities of justice, opportunity,
and peace—underpinning development, accountable government, and respect for fundamental
rights.

Rule of Law in India

Indian Constitution is supreme no one is above Indian constitution. All three organs follow
constitution if any organ does something in the violation of the constitution all such acts will
be ultra vires. The preamble of the Constitution is also telling about Rule of Law. Part- III and
all fundamental Rights come under the Rule of Law, which are enforceable by Law. If these
are violated, one can approach the Supreme Court and High court under Article 32 &226. The
term Law includes all orders, rules, regulations, bylaws, notice and customs. It expects that all
these will be according to Constitutional provisions if they will against, under article-13 they
will be declare unconstitutional and void. In the Constitution of India guaranteed certain rights
which can be enforced by the courts. At this Juncture, we may consider the position prevailing
in India as regards the third
principle of Dicey‟s doctrine of Rule of Law, i.e., predominant of legal spirit. Until this
principle was being considered in the context of interpreting the provisions of the Constitutions.
In our Constitutional system, the central and most characteristic feature is the concept of the
rule of law which means, in the present context, the authority of law courts to test all
administrative action by the standard of legality.
The administrative or executive action that does not meet the standard will be set aside if the
aggrieved person brings the appropriate action in the competent court. The doctrine of Rule of
Law has been adopted in Constitution of India. The principles of Rule of Law i.e. justice,
equality and liberty are enriched in the Constitution of India. The Constitution of India is above
all the laws implemented in Indian Territory and any law made by the central government or
by the state government must be in confirmation with the Constitution of India. If any law
made by the legislation under the jurisdiction of India which is against the mandates of the
constitution, the law would be void. The constitution of India guarantees equality before the
law, as an aspect of the rule of law, under Article-14.
Under Article 32, the Supreme Court has power to issue writes in the nature of Habeas Corpus,
mandamus, prohibition, quo warrantor and certiorari. It is also given power of judicial review
to prevent any ultra vires law, to preserve „Rule of Law' Article 15 and 16 of right to equality
and Article 19, 20 and 21 in form of right to life and liberty are provisions of our constitution
to this affect. In India, no one has very arbitrary power, except the powers given by the law.
The constitution is the Supreme law of the land and even the government derives its authority
from it. This effectuates the supremacy of law. Everyone, in India are subject to same laws,
without any discrimination, court takes into account no rank or condition. However, the
president and the governors (under Article 361) are given special exemptions. Armed forces
personnels are treated by armed laws, officials are given same immunities etc. But these
provisions do not negate the effectiveness of the rule of law in India, because their provisions
are also made by laws, under various provisions of the constitution. From a poor person to the
president, be it a police constable or a collector, are treated by law.

Judiciary and Rule of Law

The Supreme Court in the case of Indira Nehru Gandhi vs. Raj Narain - 1975 held that the
rule of law embodied in Article 14 is the 'basic structure' of the Indian constitution and hence
it cannot be destroyed even by an amendment of the constitution under Article 368 of the
constitution.
The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla 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 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…” Rule
of law serves as the basis of judicial review of administrative action. The judiciary sees to it
that the executive keeps itself within the limits of law and does not overstep the same. Thus,
judicial activism is kept into check. However there are instances in India where judiciary has
tried to infringe upon the territory of the executive and the legislature. A recent example of this
would be the present reservation scenario for the other backward classes. The judiciary
propagated that the creamy layer should be excluded from the benefits of the reservation policy,
whereas the legislature and the executive were against it.
In Keshvanad Bharti Vs. Union of India, the Supreme Court enunciated the rule of law as one
of the most important aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union
of India, the Supreme Court declared that Article 14 strikes against arbitrariness. In Indira
Nehru Gandhi Vs. Raj Narayan, 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 abridges the basic
structure of the Constitution. In the case of Binani Zinc Limited Vs. Kerala State Electricity
Board and Ors(2009) Justice S B Sinha declare that “It is now a well settled principle of law
that the rule of law inter alia postulates that all laws would be prospective subject of course to
enactment an express provision or intendment to the contrary.” In the case of Gadakh
Yashwantrao Kankarrao v. Balasaheb Vikhe Patil the ratio laid down was “If the rule of law
has to be preserved as the essence of the democracy of which purity of elections is a necessary
concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a
manner which would sub serve this higher purpose and not even imperceptibly facilitate
acceptance, much less affirmance, of the falling electoral standards. For democracy to survive,
rule of law must prevail, and it is necessary that the best available men should be chosen as
people's representatives for proper governance of the country. This can be best achieved
through men of high moral and ethical values who win the elections on a positive vote obtained
on their own merit and not by the negative vote of process of elimination based on comparative
demerits of the candidates.”

Rule of Law in England

In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king
must be under the god and law and thus vindicated the supremacy of law over the pretensions
of the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an
individualist. He wrote about the concept of rule of law at the end of the golden Victorian era
of laissez faire in England. That was the reason why Dicey’s concept of the rule of law
contemplated the absence of wide powers in the hands of governmental officials. According to
him, wherever there is discretion, there is room for arbitrariness.
A. The Great Charter: Magna Carta
On June 15, 1215 King John and his barons agreed to the great charter known as Magna Carta.
The great charter was the first significant written instrument limiting the power of the king and
confining him to what the barons regarded as good governance. Winston Churchill, concluded
that “the charter became in the process of time an enduring witness that the power of the crown
was not absolute
The role of Sir Edward Coke, Lord Chief Justice of England in the fight against the absolute
power of Stuart kings, is epic in its dimensions. In 1616 James I sent a Royal Order issued by
Sir Francis Bacon as Attorney General to coke and his fellow judged not to proceed with the
hearing of an action because the king’s prerogative was in question. The judges demurred, but
when summoned by the king the other judges humbled themselves and promised to do as the
king desired but chief Justice Coke alone stood firm and replied, “that when the case should be
he would do that should be fit for a judge to do.” As a result Coke was dismissed from his
position as Chief Justice of the King’s Bench. It was only after the Glorious Revolution and
Act of Settlement (1701) that parliamentary powers became ascendant and the independence
of the judges’ tenure was firmly secured. United Kingdom is one of the countries that has
adopted rule of law in its governance. It does not have a written constitution, but the concept
of rule of law, legislation and judiciary is embedded in its unwritten constitution. Rule of law
has gradually developed in the United Kingdom. In United Kingdom, when laws are made for
a purpose then that purpose must be carried on. If someone violates those laws, then he should
be punished for the same. The principle of equality is also carried on due to the application of
rule of law. Every person is equal in the eyes of law. They are subjected to equal and just
treatment. AV Dicey, who first outlined the rule of law and parliamentary sovereignty, believed
that equality before the law was extremely important and that officials should be dealt with by
the same court as the ordinary citizen, demonstrating to the general masses that the government
was not being unjustly lenient on an official. All laws must be passed with fairness and justice.
The provisions also state that no person can be held or punished for the crimes that they have
not committed. Therefore, no person can be mistreated in the name of law. Rule of law was
effective to check the powers of the administrative authorities. It kept the administrative actions
in limit.
In the case of Wilkes v. wood, it was held that the accused will be held liable for trespass and
will be liable to pay for damages, even if the order was from a minister. In the case of Entick
v. Carrington, the victim was granted compensation for trespass, even though the trespassing
and ransacking was due to the King’s order.The fundamental right of a person was upheld. In
the case of R v Rimmington, it was held that no person should be held liable for something that
he/she did not commit. In the case of Sharma v Brown-Antoine, it was held that criminal law
should be applied to all individuals. No one should be exempted from this law.

Rule of Law in the United States

Rule of Law has been Embedded in the Constitution of United States. The Constitution is the
supreme law of land. Article VI of the Constitution conforms that the Constitution is the
supreme law of the nation. All the laws that are to be made should be made according to the
Constitution and its provisions. No person, not even the President is above the Constitution.
The functioning of the Government is done with accordance of the Constitution and no action
of the Government shall violate it. The Constitution provides for equality among the society. It
is guaranteed under the Fourteenth Amendment. Every citizen is treated equally and is seen
equally by the eyes of law. Laws are to be made with fairness and without discrimination among
the people. The U.S. Constitution provides rights to its citizens for their protection and
betterment. The structure of Government of the United States also follows the principles of
separation powers, which is an extension of rule of law. The function of the legislative body
(Congress) is to make laws. The function of the executive body which includes the President,
Cabinet, and other agencies, is to enforce laws. The function of the judicial body which includes
federal courts, including the U.S. Supreme Court, is to interpret laws and resolve disputes. The
Supreme Court of the United States was formed to be a watchdog of the Constitution so that it
can guard the law and point out violations of the law by the public office holders and other
members of the government.
In the case of Marbury v. Madison, it was held that any law that violates the Constitution will
be struck down. This case established the provision of judicial review in the United States. In
the case Lukumi-Babalu Aye, Inc. v. City of Hialeah, it was held that the local laws were
violating the rights of the people under First Amendment. It was held that these clauses are in
violation of the provisions of the Constitution and shall be struck down. In the case of Plyler
v. Doe, it was held that denying education to the children of immigrants, who are not
documented is against the Fourteenth Amendment to the U.S Constitution. Therefore, it was
held that this practice violates the Constitution and should be brought down. In the case of
Brown v. Board of Education, it was held that segregating children on the basis of race was
against the Fourteenth Amendment to the U.S Constitution. The court ruled that this practice
violated the equal protection clause and this segregation should not be permitted.

Rule of Law as part of Social Economic Rights

Socio-economic rights encompass a spectrum of fundamental entitlements that are crucial for
ensuring the well-being and dignity of individuals within a society. These rights include, but
are not limited to, the right to education, healthcare, housing, employment, and social security.
It involves recognizing their inherently interconnected nature and their profound impact on the
overall quality of life for individuals. socio-economic rights within the framework of human
rights requires recognizing and addressing systemic inequalities. Discrimination based on
gender, race, caste, or economic status often intersects with socio-economic rights, creating
layers of disadvantage for certain groups within society. An inclusive approach to socio-
economic rights necessitates legal frameworks that actively combat discrimination, promote
inclusivity, and provide avenues for redressal when rights are violated.
At the core of socio-economic rights is the recognition that individuals should not only be
protected from government interference (negative rights) but also have a legitimate claim to
positive actions from the state to ensure their well-being. This paradigm shift challenges
traditional notions of rights and necessitates a broader understanding of the role of the state in
promoting social and economic justice.
The intricate relationship between socio-economic rights and the rule of law forms a
foundational cornerstone in the construction of a just and equitable society. Socio-economic
rights, encompassing fundamental entitlements such as the right to education, health, housing,
and employment, are integral components of human well-being. The rule of law, on the other
hand, serves as the framework that ensures these rights are not merely aspirational but are
enforceable and protected. In a symbiotic dance, socio-economic rights bolster the rule of law
by promoting inclusivity and addressing disparities, fostering a social fabric where justice
prevails. Simultaneously, the rule of law acts as a safeguard, providing a structured mechanism
for the realization and protection of socio-economic rights. This interdependence is crucial in
preventing the marginalization of vulnerable populations and promoting a society where legal
norms ensure the fair distribution of resources and opportunities. Striking a delicate balance
between these two pillars is essential for constructing a society where justice, equality, and
human dignity thrive.
The effective recognition and enforcement of socio and economic rights play a crucial role in
upholding the principle of equality before the law. By ensuring that all individuals have access
to basic necessities and opportunities for development, these rights contribute to the
establishment of a more inclusive and equitable society. In India, where socio-economic
disparities have historically been prevalent, the protection of these rights serves as a catalyst
for social upliftment and empowerment, thereby promoting the overall well-being of its
citizens. It helps in providing:
A. Foundation of Rule of Law: Social and economic rights form an integral part of the
broader framework of the rule of law. The rule of law itself encompasses the idea that
no one is above the law and that laws are applied fairly and equally to all individuals.
Social and economic rights contribute to this by establishing a foundation for equality
and justice, ensuring that legal
B. protections extend to basic needs such as education, healthcare, housing, and a decent
standard of living.
C. Equality and Non-Discrimination: Social and economic rights reinforce the principle of
equality before the law. They aim to eliminate discrimination and ensure that all
individuals, irrespective of their socio-economic status, have access to fundamental
resources and opportunities. When these rights are protected and upheld, they
contribute to a more equal and just society, aligning with the core principles of the rule
of law. It also contribute significantly to the broader goal of social justice. They address
systemic inequalities and strive to create a more fair and equitable society. When these
rights are recognized and protected within the legal system, they enhance the legitimacy
of the rule of law by ensuring that legal structures serve the welfare of all citizens, not
just a privileged few.
D. Empowerment of Marginalized Communities: The recognition and protection of socio-
economic rights empower marginalized communities by providing them with the
necessary resources and opportunities to improve their quality of life. Through various
welfare programs and initiatives, the Indian government endeavours to uplift the
underprivileged sections of society, enabling them to become active participants in the
country's social and economic progress.
 E. Fostering Inclusive Development: Socio-economic rights are instrumental in fostering
inclusive development by ensuring that all citizens have access to essential services and
resources. By prioritizing the provision of education, healthcare, and employment
opportunities, the Indian government aims to create a more equitable society where
every individual has the chance to contribute to and benefit from the country's overall
progress.

Judgements
1) Francis Coralie Mullin v. Union Territory of Delhi: The case emphasized the
fundamental right to life and personal liberty under Article 21 of the Indian
Constitution. It expanded the scope of this fundamental right to include the right to live
with human dignity, focusing on the protection of an individual's physical and mental
integrity.
2) Chameli Singh v. State of Uttar Pradesh: This case highlighted the importance of the
right to health and medical care as an integral component of the right to life under
Article 21. The judgment stressed the government's responsibility to provide adequate
healthcare facilities and services, especially to marginalized and vulnerable sections of
society.
3) Vishesh Kumar v. State of Rajasthan: The case reaffirmed the significance of the right
to education as a fundamental right under Article 21A of the Indian Constitution. The
judgment underscored the government's obligation to provide free and compulsory
education to children, ensuring equal opportunities for education for all, regardless of
their social or economic background.
4) Rural Litigation and Entitlement Kendra v. State of U.P.: This case focused on the
environmental aspect of social rights, highlighting the importance of the right to a
healthy environment for the well-being of the citizens. The judgment emphasized the
duty of the state to protect the environment and preserve natural resources for the
benefit of present and future generations.
5) Olga Tellis v. Bombay Municipal Corporation: This case highlighted the constitutional
right to livelihood and recognized that the right to life under Article 21 of the Indian
Constitution includes the right to livelihood. The judgment emphasized the duty of the
state to ensure the protection of the fundamental right to life, particularly for the
homeless and economically weaker sections of society.
6) Bandhua Mukti Morcha v. Union of India: This case focused on the enforcement of the
fundamental right against exploitation (Article 23) and emphasized the protection of
the rights of laborers and workers. The judgment highlighted the importance of
preventing forced labor and bonded labor, ensuring the social and economic welfare of
vulnerable groups in society.