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GENERAL
The term 'rule of law' means the principle of legality which refers to a government
based on principles of and not of men. In this sense the concept of the rule of law is
opposed to arbitrary powers.

Rule of law is one of the basic principles of the English Constitution: This doctrine
has been enshrined in the Constitution of the U.S.A. and in the Constitution of India as
well. The entire basis of administrative law is the concept of rule of law. Sir Edward
Coke, the Chief Justice in James I's reign is said to be the originator of this great
principled. In a battle against the King, he succeeded in maintaining that the King
must be under God and the law and thus vindicated the supremacy of law
against the executive. Dicey developed this doctrine of Coke in his classic book,
The Law and the Constitution published in the year 1885.

RULE OF LAW - A STATE OF AFFAIRS

The expression "rule of law" explains a state of affairs in which everything must be
done according to law. It is a state of affairs in which there are legal barriers to
governmental arbitrariness and there are available legal safeguards for the
protection of the individuals. In simple words, it is the reverse of tyranny, the
antithesis of the rule of anarchy and fear.1

Garner2holds that the expression 'Rule of Law' is often used simply to describe the
state of affairs in a country where, in main, the law is observed and order is kept. It is
thus synonymous with "law and order".

The expression 'Rule of Laio' is said to have been derived from the French maxim.
the principle of legality
law and not of men. 'Ride of Law' in this sense, is a concept opposed to arbitrary or
tyrannical power.

RULE OF LAW - GOVERNMENT UNDER THE LAW

It signifies that nobody should be deprived of his rights and liberties by - any
administrative action; that the administration should perform its functions according

1
Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57.
2
Administrative Law, 1983, 9.
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to law and not arbitrarily; that the supremacy of the Courts be upheld, to fully secure
the judicial control of Administrative Law.
According to Prof. Goodhart,3the essence of 'Rule of law' is that 'public officers are
governed by law, which limits their powers. It means government under law
supremacy of law over the government is distinct from government by law the mere
supremacy of law in society generally which would apply also, to totalitarian States.
To put it in short, 'Rule of Law' implies a state of affairs, where there is absence of
arbitrary powers, where law is observed by everyone including the Government and
its officers, where the action of the administration is backed by law, where every man
is equal before law and assured that he will not be punished except for violation of
law, where cases relating to violation of law or disputes as to rights and duties, are
decided by impartial and independent Courts or Tribunals.4

WADE'S INTERPRETATION OF RULE OF LAW

Wade & Forsyth,5assign four meanings to "rule of law". Its primary meaningis that
everything must be done according to law. It requires that every government
authority must be able to justify its action as authorized by law. And, that the affected
A person may always resort to the Court of law and if the legal pedigree is not found to
be perfectly in order, the Court will invalidate the act. It is called the principle of legality.

Therefore, 'rule of law' means that 'government should be conducted within a

framework of recognized rules and principles which restrict discretionary power.
thesecondary meaningof the rule of law, say the learned writers. They refer to
Edward Coke's description of 'rule of law' as 'the golden and straight metwand of law, as
opposedtotheuncertainandcrookedcordofdiscretion.6

The third meaning of 'rule of law', a corollary drawn from its first meaning, Wade &
Forsyth says that disputes about the legality of acts of government are to be
decided by Judges who are independent of the Executive. The right to carry a
dispute with the government before the ordinary Courts, manned by Judges of the
3
Prof. A.L. Goodhart, 'The Rule of Law and Absolute Sovereignty', 106 UPLR, (1958), 943.
4
See also K.C. Davis, supra, note 11.
5
Administrative Law, 2007, 20-24.
6
Sir Edward Coke was the Chief Justice in the Court of James I. He was credited with being the originator of the
concept of 'rule of law'.
 Page |3

highest independence, is, according to the learned writers, an important element in the
7
Anglo-American concept of the rule of law.

The law should be even-handed between the Government and citizen.

Government should not enjoy unnecessary privileges or exemptions from ordinary
law. That, "all public authorities", in principle, "should be subject to all normal legal
duties and liabilities which are not inconsistent with their governmental functions.
is the fourth meaning assigned to the concept of 'rule of law.'8

Besides the above four meanings of 'rule of law' which may be said to be the
principles for the maintenance of the 'rule of law', what is most essential is the
establishment of 'representative democracy', providing for beneficial social and
economic services and conditions, personal independence, along with the principle
of 'minimal interference.'8

In England, Sir Edward Coke, the Chief Justice during James I's reign, was credited
with being the originator of the concept of 'rule of law'. In the battle royal which he
waged against the King, Coke maintained successfully that the King must be under
God and the Law and thus vindicated the supremacy of law over the pretensions of
the Executive.

DICEY'S FORMULATION OF RULE OF LAW

A.V. Dicey developed the concept in the course of his lectures at Oxford
University. He emphasized the fact that an Englishman could be punished for a breach.
of the law and for nothing else. Dicey developed his thesis in his classic work entitled
TheLawandtheConstiutionpublishedintheyear1885.
In his formulation, Dicey attributed to the concept of 'rule of law' the following three
meanings

A. Supremacy of law
Explaining the first principle, Dicey states 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 of

7
Id., 22.
8
Id.,22.
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prerogative or even wide discretionary authority on the part of the Government.

According to him, the English were ruled by the law and the law alone. A man may
be punished for a breach of law, but can be punished for nothing else.9He denied
that in England the government was based on exercise by persons in authority of
wide arbitrary or discretionary powers. 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 its subjects.10AsWade11says the rule of law requires that
the Government should be subject to the law, rather than the law subject to the
Government.
In other words, according to this doctrine, no man can be arrested, punished or be
lawfully made to suffer in body or goods except by due process of law and for a
breach of law established in the ordinary legal manner before the ordinary courts of
the land. Dicey described this principle as 'the central and most characteristic
feature' of Common Law.
B. Equality before law
The attribute of "Rule of Law" Dicey stated was "equality before the law and equal
subjection of all classes to the ordinary law of the land administered by the ordinary
law courts.12
Explaining the second principle of the rule of law, Dicey states that there must be
equality before the law or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts. According to him, in England, all
persons were subject to one and the same law, and there were no extraordinary
tribunals or special courts for officers of the Government and other authorities.
According to him, courts are supreme throughout the state. He criticized the French.
legal system of administrative law in which there were separate administrative tribunals
for deciding cases between the officials of the State and the citizens. According to
him, exemption of the civil servants from the jurisdiction of the ordinary courts of law
and providing them with the special tribunals was the negation of equality. Of course,
Dicey himself saw that administrative authorities were exercising 'judicial' functions

9
The Law and the Constitution, 1915, p. 202.
10
Id., p. 184.
11
Administrative Law, 1994, pp. 34-36.
12
Dicey, above, note 16.
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though they were not 'courts'. He, therefore, asserted: 'Such transference of
authority saps the foundation of the rule of law which has been for generations a
leading feature of the English Constitution.
According to Dicey13any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his
rights. In the words of Lord Denning14Our English law does not allow a public
officer to shelter behind adroitadministratif.
igofAdministrative Law - Under the French Legal System, known as law
Meann
Administrative, there are two types of laws and two sets of courts independent of each.
other. The ordinary courts administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as between the subject and
the State. An administrative authority or official is not subject to the jurisdiction of the
ordinary civil courts exercising powers under the civil law in disputes between the
private individuals. All claims and disputes in which these authorities or officials are
parties fall outside the scope of the jurisdiction of ordinary courts and they must be
dealt with and decided by the special tribunals. Though the system of law
Administrative is very old, it was regularly put into practice by Napoleon in the 18th.
century.

C. Predominance of legal spirit

Explaining his third exposition of 'Rule of Law', Dicey asserted that the general
principles of the Constitution were the result of judicial decisions of the Courts in
England. In many countries, rights such as the right to personal liberty, freedom from
arrest, freedom to hold public meetings are guaranteed by a written Constitution; in
England, it is not so. Those rights are the result of judicial decisions in concrete.
cases which have actually arisen between the parties. The Constitution is not the
source but the consequence of the rights of the individuals. Thus, Dicey emphasised
the role of the courts of law as guarantors of liberty and suggested that the rights
would be secured more adequately if they were enforceable in the courts of law than
by mere declaration of those rights in a document, as in the latter case, they can be
ignored, curtailed or trampled upon. He stated: "the Law of the Constitution, the rules

13
Cited by V.G. Ramachandran: Administrative Law, 1984.
14
Ministry of housing v. Sharp, (1970) 2 QB 223(226)
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which in foreign countries naturally form part of a constitutional Code, are not the
source but the consequences of the rights of individuals, as defined and enforced by
the courts.

EVALUATION OF DICEY'S CONCEPT OF RULE OF LAW

Dicey's formulation of the concept of""Rule of law" has been subjected to criticism on
various counts.
While explaining the contents of his doctrine of"Rule of Law, Dicey not only excluded
discretionary powers but also insisted that the administrative authorities should not be
given wide discretionary powers. He believed that "wherever there is discretion there
is room for arbitrariness.
Dicey, thus, failed to distinguish arbitrary powers from discretionary powers. While arbitrary
Power is said to be inconsistent with the concept of 'Rule of Law', discretionary power.
would not be, if it is exercised properly. Intensive Government as it exists in modern
times, say Wade & Forsyth15cannot be carried on without a great deal of
discretionary power and that this power is often conferred in excessively sweeping
language
Besides, Dicey ignored the privileges and immunities enjoyed by the Crown (which
term stood for the Executive) under the cover of the Constitutional maxim"Kingcando
no wrong. Dicey, therefore, say Jain & Jain, was factually wrong in his analysis.
though his exposition of"Rule of Law" has had a tremendous impact on the growth of
Administrative Law in England.16
Dicey's criticism of the French system of Administrative Courts is said to be based on his
mistaken conclusion. He misunderstood and miscomprehended the real nature of
the system. He held that Administrative Law was designed for the purpose of giving to
officials 'a whole body of special rights, privileges or prerogatives as against private
citizens17so as to make them a law unto themselves.
The French Administrative Law, the learned authors assert, 'has a system of
compensation for the acts of public officers which is in some respect more generous

15
Supra note 3, 23.
16
Jain and Jain, Principles of Administrative Law, 2008, 13-14.
17
A.V. Dicey, The Law of The Constitution, X, 336.
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than that of English Law.18It is that, the French Council of State is widely admired and
has served as a model for other countries.19
Besides, Dicey also ignored the growth of administrative tribunals.20quite a few of
which had come into existence when he propounded his concept of "rule of law".
Later, Dicey himself became conscious of the emergence of Administrative Law in
England.
The principle implicit in Dicey's 'rule of law' thesis is that the Executive must act under
the law and not by its own decree or fiat. It is still the core principle of the Common
Law system.
One thing must be noted. In modern times, Dicey's rule of law has come to be
identified with the concept of rights of citizens. As Wade and Phillips16rightly state, it
is accepted in almost all the countries outside the Communist world with some
variations. It is invoked in modern democratic countries to keep control over the
oppressive, capricious and arbitrary exercise of powers by the administrative
authorities. The International Commission of Jurists, in their 'Delhi Declaration' made
in the year 1959 accepted the idea of the rule of law as a modern form of law of
nature. In the ultimate analysis it may be concluded that Dicey's contribution to the
The study of Administrative Law must be acknowledged.

MODERN MEANING OF RULE OF LAW

The modern concept of 'Rule of Law' was developed by the International
Commission of jurists in 1959,21which was later on confirmed at Lagos in 1961.
Jurists22recorded that"rule of law" depended not only on the existence of adequate
safeguards against the abuse of power by the executive but also on the existence of
effective Government capable of maintaining law and order and ensuring social and
economic conditions of life for society.

18
Ibid.
19
See Brown and Bell, French Administrative Law, V, quoted Ibid.
20
For instance, special tribunals were established under the Poor Law Amendment Act, 1834, whereby
poor law boards exercised legislative and adjudicatory powers. Besides, there were Ecclesiastical and Admiralty
Courts exercising special jurisdiction.
21
It is known as the Delhi Declaration, 1959.
22
Ibid.
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Stating that an independent legal profession was the sine qua non of the "Rule of Law"
the Jurists expressed that there should be an independent judiciary with the security of
tenure free from legislative and executive interference.23

The modern concept of the Rule of Law is fairly wide.24gives seven principal
meanings of the term Rule of Law:

Law and Order

(2) Fixed rules;
(3) Elimination of discretion;
Due Process of law or fairness;
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
Judicial review of administrative action.

FORMAL AND IDEOLOGICAL MEANING OF 'RULE OF LAW'

The term 'rule of law' can be used in two senses: formal sense, and ideological.
sense. In a purely formal sense, the rule means no more than organized public power.
In this sense the rule of law refers to the rule of organization.

In a purely formal sense, any system of norms based on a hierarchy of orders, even the
Organized mass murders of the Nazi regime qualify as law.

In ideological sense, the rule of law sets an ideal for any government to achieve.
This concept was developed by the International Commission of Jurists known as
Delhi Declaration, 1959.

Rule of Law in India

For a democratic government, rule of law is a basic requirement. The rule of law runs
like a golden thread through every provision of the Constitution and indisputably
constitutes one of its basic features, which requires that every organ of the state

23
Ibid.
24
Administrative Law, 1959, pp. 24-27.
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must act within the confines of powers conferred upon it by the Constitution and the
law. The rule of law pervades over the entire field of administration.25

Rule of law permeates the entire fabric of the Indian Constitution and indeed forms
one of its basic features.26Law in the context of the rule of law does not mean any
law enacted by the legislative authorities, however arbitrary or despotic it may be
What is a necessary element of the rule of law is that law must not be
arbitrary or irrational and it must satisfy the test of reason and the democratic form if
the polity seeks to ensure this element by making the frame of law accountable to
the people.27

Even law can promote arbitrary power. Law and rule of law are two different
concepts. As Justice Khanna emphasised in his celebrated dissenting opinion in the
Habeas corpus case,28A state of negation of rule of law would not cease to be such a
state because of the fact that such a state of negation of rule of law has been
brought about by statute.
Every organ of the administration is regulated by the rule of law. The Indian
The Constitution embodies the modern concept of the rule of law. The concept of the rule
of law exists in this country by virtue of the following features:
1) Supremacy of the constitution. -Dicey's doctrine of the rule of law has been
accepted and embodied in the Constitution of India. In the Preamble are enunciated
the ideals of justice, liberty and equality. These concepts are enshrined in the Part III
as fundamental rights and are made enforceable. The Constitution is supreme29and
all the three organs of the government, that is legislature, executive and judiciary are
subordinate to and have to act in accordance with it. The principle of judicial review
is enshrined in the Constitution and subject can approach High Courts and Supreme
Court for enforcement of Fundamental Rights guaranteed under the Constitution.
Supreme Court under Art. 32 and High Court under Art. 226 can issue writs for
enforcement of the Fundamental Rights.

If the executive or the government abuses the powers conferred on it or if the action
In the same way, it can be annulled by the ordinary courts. All rules, regulations,

25
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
26
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
27
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
28
ADM Jabalpur v. Shivakant Shukla
29
AK Gopalan v. State of Madras, AIR 1950 SC 27.
 Page |10

ordinances, bye-laws, notifications, customs and usages are laws within the meaning
of Art.13 of the Constitution. If they are inconsistent or contrary to any provision of
the Constitution, they can be declared ultra vires by the Supreme Court and the High
Courts. No person shall be deprived of his life or personal liberty except according to
the procedure established by law.30The executive and legislative powers of the
State and the Union are required to be exercised according to the provisions of the
Constitution. The government and public officials are not above the law.

2) Constitutional requirement of equality. - Equality before law as a postulate of rule of

The law has been accepted and adopted under Article 14 of the Constitution. The maxim ‘the
'The king can do no wrong' has no application in India. The government and public
authorities are subject to the jurisdiction of ordinary courts of law and for similar
wrongs are to be tried and penalized similarly.

InSomRajv.StateofHaryana31it was held by the Supreme Court that normally, the

The order of appointment would be in accordance with the merit of candidates from the select list.

Even when discretion is conferred on an executive authority, it must be exercised.

in a reasonable manner and should not be exercised arbitrarily. "The absence of
arbitrary power is the first postulate of the rule of law upon which our whole
the constitutional edifice is based. If the discretion is exercised without any principle or
without any rule, it is a situation amounting to the antithesis of rule of law.
Rule of law as a feature of basic structure.Kesavananda Bharati v. State of
Kerala32some of the judges constituting majority were of the opinion that the Rule of
law was an 'aspect of the doctrine of basic structure of the Constitution, which even
the plenary power of Parliament cannot extend to amendments.

InIndira Nehru Gandhi v. Raj Narain,33wherein the Apex Court invalidated Clause
(4) of Article 329-A, inserted in the Constitution by the Constitution (39th
Amendment Act, 1975to immunize the election dispute to the office of the Prime
Minister from any kind of judicial review, the following facets of 'Rule of Law' may be
culled out

30
Article 21.
31
(1990) 2 SCC 653.
32
AIR 1973 SC 1461.
33
AIR 1975 SC 2299.
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that, the Rule of Law postulates the pervasiveness of the spirit of law throughout
the whole range of government in the sense of excluding arbitrary official action in any
sphere,34
that,thejurisdictionoftheSupremeCourttotryacaseonmeritscannotbetakenaway
without injury to the basic postulates of 'the Rule of Law' and of justice within a
politically democratic constitutional structure,35
that, since the validation of the Prime Minister's election was not by applying any
law, therefore, clause (4) of Article 329-A, offended the Rule of Law.36

4) Elimination of arbitrariness, and not of discretion. - Expounding the concept of rule of

law inSupreme Court Advocate-on-Record Association v. Union of India 37, the
The Supreme Court established that the rule of law does not exclude the existence of discretion.
power completely. In this case the court held the view that vesting of absolute power
in one individual is not warranted under the constitutional scheme. For the rule of law
to become realistic, there has to be room for discretionary authority within the
operation of the rule of law, even though it has to be reduced to the minimum extent
necessary for proper governance and within the areas of discretionary authority, the
the existence of proper guidelines or norms of general application excludes any arbitrary
exercise of discretionary authority. In such a situation, the exercise of discretionary
authority in its application to individuals, according to proper guidelines, or norms
further reduces the area of discretion, but to that extent discretionary authority has to
be given to make the system workable.

Judicial activism as a valiant enterprise is seen as a part of the efforts of Constitutional

Courts in India to establish rule of law society which postulates that no matter how
No matter how high a person may be, the law is always above him. The Court is also making
efforts to link rule of law with human rights of the people. The Court is evolving
strategy by which it can force the government not only to submit to law but also to create
conditions where people can develop capacities to enjoy their rights in proper and
meaningful way. It is the responsibility of the public administration for effective
implementation of rule of law and constitutional commands which effectuate fairly the

34
Id., para 336, per Mathew, J. (Emphasis added).
35
Id., para 623, per Beg, J. (Emphasis added).
36
Id., para 59, per Ray, C.J.
37
AIR 1994 SC 268.
 Page |12

Objective standards laid down by law. Every government servant holding public
Power is a trustee of the society and accountable for achieving national goals.

Although all the merits are unhurt in the concept of the Rule of law, the only negative
an aspect of the concept is that respect for law degenerates into rigidity of legalism
which is injurious to the nation.

RULE OF LAW VIS-A-VIS ADMINISTRATIVE LAW

Administrative Law, broadly speaking, deals with the composition and powers of the
different organs of administration; the limits of their powers; the methods and
procedures followed by them in exercising their powers and functions; the various
modes by which their powers are controlled including the legal remedies available to
a person against them when his rights are infringed by their operation.38

Since it is the individual who is usually affected in his dealings with the mighty.
Administration, the most important function of Administrative Law is to protect him
from administrative excesses. It is to ensure that government’s powers are exercised
according to law, on proper legal principles according to the rules of reason and
justice and not on the mere caprice or whim of the administrative officers. It is the
central theme of 'Rule of Law' which implies that the Executive must act under the
law and not by its own decree or fiat.

Thus, both 'Administrative Law' as well as 'Rule of Law' aim at controlling the
exercise by the Administration of arbitrary powers. There is, therefore, no contradiction
between the two.

The principal concern of Dicey's formulation of 'Rule of Law' was 'absence of

abrantiresandequytaibleoferhtealw
ostiktIe.ephteExecuviteandhteopeoaritnostif
powers within the limits of law. In that sense also Administrative Law does not infringe
but on the other hand, promotes the 'Rule of Law'.39For the Administrative Law is
developed not to sanctify Executive arbitrariness but to check it and protect the
rights of the people against the administrative excesses.

38
Jain and Jain, supra note 27, 12.
39
Harry W. Jones, The Rule of Law and The Welfare State, 58 Col. LR 143 (1958).
 Page |13

Wade and Forsyth state that the concept of 'Rule of Law' might be called the
mainspring of Administrative Law and that the latter is the area where the principle of
The 'Rule of Law' is to be seen in its most active operation.40

In the ultimate analysis, it may be stated that both 'Rule of Law' and 'Administrative'
Law emphasizes the judicial control of administrative action; both denounce the
increase of arbitrary or discretionary powers of Administration and advocate
controlling it through procedures and other means. 'Administrative Law' thus does
not infringe, but on the other hand, promotes 'Rule of Law'.41

40
Wade and Forsyth, supra note 3, 20-24.
41
See also supra, 15-19, 'Development of Administrative Law.'