Introduction

In the words of the UN Vienna Declaration of 1993 “human rights are universal,
indivisible, interdependent and interrelated and therefore should be protected
and promoted in a fair and equitable manner by something as fundamental and
all-pervasive as the rule of law.’’ The latest encounter of the gangster Vikas
Dubey has sparked the debate regarding rule of law and has also raised
questions on the exercise of violence by the institutions of the state. Criticisms
have been coming from across the nation especially from the opposition that
such an act is against the fundamentals of law, that is, against the rule of law. In
the present day context where incidences like encounters and mob lynching
have started to become obvious for people it gets necessary to indicate what
importance the rule of law has in such situations and hence the main focus of
this article is dedicated towards what does rule of law exactly means and how it
has developed through time to meet with the present scenario.

Rule of Law: Meaning

As the term itself connotes, ‘Rule of Law’ means rule of law and not of men.

The expression “Rule of Law” is derived from the French phrase ‘le principe de
legalite’ meaning the principle of legality.

Defining rule of law Prof Wade expressed- “The rule of law requires that the
government should be subject to the law rather than the law subject to the
government”

According to Black’s law dictionary, Rule of Law may be specifically defined as

supremacy of law where decision is made by applying known principles or laws,
where there is no intervention of discretion in application of such principles or
laws.

Rule of law has been defined by many scholars as the symbol of ultimate
authority, which no man can override. As stated by Lord Denning in
case Gouriet V. Union of post office workers Every person in land, no
matter how powerful or high in status he may be, law will always be above
them.

The rule of Law is one of the basic and general principles of the constitution. It is
characterized in the words of Max Weber as – “legal domination as an idea of
government of law rather than an idea of men.’’
So, in essence rule of law means that everyone from the government to its
officials, together with citizens should act according to the law.

The doctrine of rule of law has been described as supremacy of the law. This
means that where there is rule of law no person can be said to be above the
law, even the functions and actions of the executive organ of the state shall be
within the ambit of the law.

Rule of law imposes a duty on all citizens in a parliamentary democracy to obey

the law and for such obedience the law itself must be just law and not arbitrary
or oppressive law.

The aim of rule of law like other constitutional principles is the uplifting of
freedom and fundamental rights of the people. The rule of law has propounded
to make sure that the executive doesn’t use law of the land or country to
oppress or curtail freedom of individuals as they are found in the bill of rights.

In the Indian context, the meaning of rule of law has somewhat been much
expanded. The Supreme Court has in various occasions further enunciated and
illustrated the rule of law through its judgement in furtherance of the basic
principles as laid down by A.V. Dicey. It is considered as a part of the basic
structure of the Constitution and, hence, it cannot be abrogated or destroyed
even by the Parliament. The ideals of constitution; liberty, equality and
fraternity have been enshrined in the preamble. Rule of law mandates that no
person shall be subjected to harsh, uncivilised or discriminatory treatment even
if the object is to protect and secure law and order.

Origin of the Rule of Law

The first proponents of the doctrine of the rule of law are believed to be Greek
philosophers including Aristotle, Plato, Cicero. For instance Plato in his book
known as ‘Complete Works of Plato’ is found to have written that the collapse of
the state is not far where the law is made subjective to the authorities but the
states where the law is considered as supreme all the blessings of the god falls
on such state and it flourishes through all times.

The rule of law is an ancient ideal first posited by Aristotle, a Greek scholar, as a
system of rules inherent in the natural order.

In England, Rule of law began sometimes around 1215 when King John of
England signed the Magna Carta of 1215. The signing of Magna Carta indicated
the consent of the Monarchy of England to be under the law and the law to be
supreme. The doctrine of rule of law in England took a new look after the conflict
between the parliament and monarchy or king aroused. In this conflict the
parliament and the monarchy were struggling to be supreme authority. This
conflict was resolved in favour of the parliament. After parliament became
supreme over the monarchy it started making the laws which controlled and
limited power of the monarchy. Hence executive organs in England became
subjected to the law of the parliament and that was the beginning of the rule of
law in England.

In the United States of America (U.S.A.) the doctrine of rule of law was first
introduced in 1776 by the constitutional lawyers known as Paine. He is of the
view that America being a free country considers Law as the king because in
every country which is free law should be the king and no one else.

More ideas of Rule of law were further developed by the renowned English
constitutional lawyer by the name of Dicey.

In the modern sense, the most famous exposition of the concept of rule of law
was given by Prof. Albert Venn Dicey in his book ‘THE LAW OF THE
CONSTITUTION’ in respect to the powers which the government must exercise in
accordance to the law. Rule of law consists of several basic principles which law
and policy makers, judges and law enforcement agencies should consider while
exercising authority in a democratic society. This means all duties, power and
functions of government, including its organs and authorities are done in
accordance with the law.

Dicey’s Concept of Rule of Law

It would be appropriate to discuss the views of Dicey, as he is known to be the
main exponent of the concept of rule of law. However the origin of his doctrine
was attributed to Sir Edward Coke. He introduced for the first time that, ‘King is
under God and the Law.’ The firm base of rule of law owes its exposition to
Albert Venn Dicey. Dicey, in his book Law and Constitution in the year 1885
further developed this concept given by Coke. According to Dicey’s theory, rule
of law has three pillars based on the concept that “a government should be
based on principles of law and not of men”, these are-

 Supremacy of Law;
 Equality before the Law; and
 Predominance of Legal spirit.

1. Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law
rules over all people including the persons administering the law. According to
Dicey the absolute supremacy of the law as opposed to the arbitrary power of
the government is what constitutes the rule of law. In other words a man should
only be punished for the distinct breach of law, and not for anything else. The
person cannot be punished by the government merely by its own fiat but only
according to the established law.

Further, Dicey asserted that discretion has no place where there is supremacy of
law. According to him discretion is a link to arbitrariness. Dicey says that
wherever there is discretion, there is room for arbitrariness and discretionary
authority on the part of the government to jeopardize the legal freedom of the
people.

2. Equality before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before
Law. In other words, every man irrespective of his rank or position is subject to
the ordinary law and jurisdiction of the ordinary court and not to any special
court. According to him special law and special courts is a threat to the
principles of equality. Therefore he is of the view that there should be the same
set of laws for all the people and should be adjudicated by the same civil courts.

3. Predominance of the legal spirit

The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit.
According to Dicey, for the prevalence of the rule of law there should be an
enforcing authority and that authority he found in the courts. He believed that
the courts are the enforcer of the rule of law and hence it should be free from
impartiality and external influence. Independence of the judiciary is therefore an
important pillar for the existence of rule of law. He asserted that the courts of
law and not the written constitution are the ultimate protector of an individual’s
fundamentals.

Dicey’s theory has been criticised by many from various angles but the basic
tenet expressed by him is that power is derived from, and is to be exercised
according to law. In substance, Dicey’s emphasis, on the whole, in his
enunciation of rule of law is on the absence of arbitrary power, and discretionary
power, equality before law, and legal protection to basic human rights and these
ideals remain relevant and significant in every democratic country even today.

Exceptions to Rule of Law

It order to cope up with the need of practical government, a number of
exceptions have been engrafted on these ideals of rule of law provided be Dicey
in modern democratic countries, e.g., there is a universal growth of broad
discretionary powers of the administration; many administrative tribunals have
developed; the institution of preventive detention has now become the normal
feature in many democratic countries. Nevertheless even after incorporating
certain exceptions the basic ideas of rule of law are still preserved and
promoted.

In kenya , dicey’s concept of rule of law cannot be said to be followed in strict

sense, there are certain exceptions provided under the KENYAN Constitution
and other laws. For example:

 Existence of wide discretionary power to the executive-

 Immunities and privileges-

Rule of Law And KENYAN Constitution

Case Laws
Indra Nehru Gandhi V Raj Narayan

In this case the 39th amendment to the Constitution was challenged which has
placed the election of President, Prime Minister, Vice-President and the Speaker
of Lok Sabha unjustifiable in the courts of law. Holding the amendment as
unconstitutional chief justice Ray found the amendment as violative of the basic
structure of the Constitution i.e., Rule of Law. Rule of Law being anti thesis to
arbitrariness does not empower the parliament to pass a retrospective law
validating an invalid election. Such exercise of power is opposed to the basic
principles of Rule of Law.

Bachan Singh v. state of Punjab Singh

This a landmark judgement on death penalty. The question whether death

penalty can be imposed under section 302 of IPC was discussed in this case.
While the majority of the judges held that the death penalty can be imposed
under rarerest of the rare situation, justice Bhagwati dissented with the majority
opinion and said said that imposition of the death penalty under Section 302 of
IPC is ultra vires and void as it violates Articles 14 and 21 of the Constitution.

Justice Bhagwati has emphasized that rule of law denies any room for
arbitrariness and unreasonableness. To ensure this, he has suggested that the
power of the parliament to make law should not be unfettered and the excesses
of executive and legislative power should be brought under the check by the
independent judiciary so that the rights of the citizen can be protected.
Modern Concept of Rule of Law
From the above, it is clear that there has been a constant alteration and
modifications in the concept of Rule of Law to suit the need of the present
scenario. According to Prof. Baxi A study of Keshvananda, Indira Gandhi and
other Habeas corpus cases provides a distribution of Indian Judicial thought on
the conception of the rule of law which has evolved well over a quarter century.
The Concept of Rule of Law has been given a new dimension by the liberal
interpretation of the Supreme Court of India. Rule of law today envisages not
arbitrary power but controlled power.

The modern concept of the Rule of law of law is now so greatly developed that it
provides an ideal setup for any government to achieve. The concept was
developed by the International Commission of Jurist, known as Delhi Declaration
1959, which was later confirmed at Lagos in 1961. According to this formulation,
the dignity of man as an individual is upheld. It implies that the rule of law
should be so applied as to create conditions in which the dignity of an individual
should be given priority. The dignity of an individual doesn’t include only the
recognition of civil and political rights but also social, economical educational
cultural and developmental rights. In Short for the proper incorporation of the
Rule of law, Human Rights mechanism should be ensured. Particularly in the
content of third world countries like India, Human Rights mechanism is utmost
necessary.

Moderating the Dicey’s meaning in the present day context Prof. Wade has
included, effective control of and proper publicity for delegated legislation under
the concept of Rule of Law, particularly when it imposes penalties that should as
far as practicable be defined; every man should be responsible to, the ordinary
laws whether he be a private citizen are public official, the private man’s right
should be determined by impartial and independent tribunals and fundamental
private rights are safeguards by ordinary laws of England.

Conclusion
The above mentioned judgement clearly states the evolution in the concept of
rule of law in KENYA . The basic principles of rule of law are not followed stricto
sensu in the Indian context. It has modified the application of rule of law from
time to time to meet the exigency of the situation.