RULE OF LAW
A.V. Dicey, An Introduction to the study of the Constitution| Additional District Magistrate, Jabalpur v. Shivkant Shukla &
Others (1976) 2 SCC 521 | M. P. Jain & S. N. Jain, Principles of Administrative Law Ch. 2
WHAT IS RULE OF LAW? EARLY DEFINITIONS
The term ‘Rule of law’ 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’.
The concept of ‘la principe de legalite’ is opposed to arbitrary powers.
Voltaire saw rule of law as a guarantee against arbitrariness and oppression, he advocated
that ‘wherever law ends, tyranny begins’.
An essential principle of the Rule of Law is that every executive action if it is to operate to
the prejudice of any person must have the sanction of law. No administrator or official can
arrest or detain a person unless there is a legislative sanction for such action.
Another major premise of the Rule of Law is that law shall be equal in its application. If there
is cogent evidence of the commission of a grave crime for which an ordinary citizen would be
arrested, the law cannot be differently applied depending on the status of the person.
RULE OF LAW: DICEY & UK
Rule of Law is the cornerstone of the British Constitution. The principal exponent of the
principle is Prof. A.V. Dicey. According to him, it implies:
No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land.
Equality before law or the equal subjection of all classes to the ordinary law of the land, as administered
by the ordinary law courts. Any person, irrespective of rank or condition, is subject to the ordinary law
of the realm and amenable to the jurisdiction of the ordinary courts.
Dicey vehemently criticized the system of droit administratif prevailing in France- under droit
administratif there were separate tribunals for deciding cases between the government and
the citizens. The officials in their official capacity were protected from the ordinary law of the
land and from the jurisdiction of ordinary courts. He viewed the French system as despotic,
one designed to protect guilty officials.
RULE OF LAW: DICEY & UK
Criticism of Dicey’s doctrine of rule of law:
Even in his time, Dicey’s postulates were not fully operative in England. He ignored the
privileges and immunities enjoyed by the Crown under the maxim that King can do no
wrong; and many statutes that conferred discretionary powers on the executive.
His critique of droit administratif was flawed. After detailed studies, it was seen that the
French system of executive control was much more effective, offered a better safeguard
against executive excesses.
In his lifetime he saw the delegation of duties to the government through parliamentary
legislation- including judicial functions. He even accepted that the conferment of judicial or
quasi-judicial functions was a considerable step in the direction of droit administratif.
Dicey assumed that there should be complete equality between government and officials
on one hand, and citizens on the other. In reality government and its officials enjoy many
powers and privileges that citizens do not.
RULE OF LAW: EVOLUTION
Rule of law offers a philosophy to curb governmental powers and to keep administration within bounds.
Dicey’s main emphasis in substance is on the absence of arbitrary powers. Rule of law can be a potent
instrument to evaluate the country’s administrative law and operates at the level of exercise of executive
powers. Impact of rule of law on administrative law-
1st essential value derivable from rule of law- administration does not enjoy any power outside the law.
Bureaucratic powers are to be confined within legal parameters. The doctrine of ultra vires and
judicial control of administrative action- Noone can be deprived of their right, liberty, or property
without the authority of law.
2nd- Rule of law is associated with the supremacy of courts- judicial review of administrative action
remains a pivot of admin law in India.
3rd- distinction between discretionary and arbitrary powers. Discretionary powers should not be too
wide/unchecked, so as to become arbitrary. The complete absence of discretionary powers is not the
solution, important to keep safeguards.
RULE OF LAW: PRESENT SCOPE
It is a value internal to the law itself, informing and guiding our efforts to ascertain the legal
rights, powers, and duties created by statutory enactment, judicial precedent, and
constitutional custom or practice.
Rule of law is closely related to the protection of liberty- Law and liberty are closely connected
values: our liberty understood as immunity from arbitrary interference, depends on the regular
and reliable enforcement of those legal rules that define the scope of official powers and
frame the content of the civil and criminal law.
Dicey’s formulation of rule of law is pivoted on his strong reservation against administrative
discretion- since he believes that discretion provides the scope for interference with liberty.
Instead of rejecting the ideal of the rule of law as incompatible with the modern welfare-
regulatory state, in which governmental discretion is inescapable, we should recognize the
need for safeguards against the abuse of such discretion.
In the present era, rule of law imposes requirements of procedural fairness and substantive
RULE OF LAW: INDIA
Rule of Law runs like a golden thread in the Indian Constitution. Part III of the Indian Constitution
guarantees certain fundamental rights akin to a Bill of Rights.
For example, Article 14 states “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”. Equality before law and equal protection before law.
No fundamental right in the Indian Constitution is absolute. Reasonable restrictions can be imposed on the
exercise of the various fundamental rights guaranteed under Article 19 but the primary requirement is
that the restriction must be prescribed by law, not by administrative non-statutory instructions.
A.D.M. Jabalpur v. S. Shukla- in his dissenting opinion, Justice Khanna, trying to put a curb on the vast
administrative powers during the emergency invoked the concept of rule of law:
Rule of law anti-thesis of arbitrariness. Identified as liberty of individual- seeks to maintain the balance between
individual liberty and public order.
Majority opinion- rule of law is intractable- cannot override emergency provisions. Constitution is the rule of law- no
one can rise above the constitution. This was revised by the court in Indira Gandhi v. Raj Narain.
BACKGROUND: A.D.M. JABALPUR V. S.
SHUKLA
In June 1975, the Allahabad High Court convicted the then PM of India, Indira Gandhi of
electoral malpractices, disqualifying her from Parliament and imposing a six-year ban on her
from holding any elected post. On Indira Gandhi's appeal, Justice VR Krishna Iyer, a Supreme
Court vacation judge, issued a conditional stay on the Allahabad High Court verdict, allowing
her to remain Prime Minister. She was, however, disallowed from participating in parliamentary
proceedings and drawing salary as an MP.
It is interesting to note that the very next day, the President in the exercise of his powers
which have been granted by Article 352(1) of the Indian Constitution, declared that there was a
grave emergency whereby the security of India is threatened by the internal disturbances-
suspending all fundamental rights, imprisoning opposition leaders, and imposing media
control.
On 27th June 1975, exercising the powers that are granted under Article 359 of the
Constitution, it was declared that the right of any person including foreigners to move any
FACTS: A.D.M. JABALPUR V. S. SHUKLA
• On 8th January 1976 by exercising the powers granted under Article 352 of the Constitution,
the President passed a notification declaring the right of any person to move to any court in
order to enforce the right which has been granted to them under Article 19 of the Constitution
and also all the proceedings that are pending in the court for the rights mentioned in the
previous slide will remain suspended during the period of proclamation of emergency.
• Thereupon, several illegal detentions were made including the detention of some most
prominent leaders such as Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee, and L.K.
Advani who were detained without any charges and trial. The respondents filed applications in
different High Courts for the issue of the writ of habeas corpus. They challenged in some cases
the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of
Emergency by the President u/art. 352 of the Constitution made in June 1975. They challenged
the legality and validity of the orders of their detention in all the cases.
• The government then approached the Supreme Court to challenge the verdicts from different
High Courts in the A.D.M. Jabalpur v. S. Shukla case- in front of the Supreme Court, the state
was the appellant, and the respondents were the original petitioners in the High Courts.
KEY ISSUES: A.D.M. JABALPUR V. S.
SHUKLA
Petitioner’s Arguments
Main aim of the provision of emergency was to vest special powers in the executive so that it holds
complete control over the law and order of the nation since the situation of emergency is of extreme
importance when the situation is fragile.
When a person is detained, the order of detention could not be challenged as wrong stating that there
were no strong reasons to detain a person. When an emergency is declared, a person forfeits Article
19 of the Constitution and if a person is detained in contravention of Article 22, the same cannot be
questioned in the proceeding of Habeas Corpus since the option to file a petition in the court is
suspended during the situation of an emergency.
Respondents Arguments
Article 359 prohibits moving to the Apex Court for enforcement of certain rights but there isn’t any
prohibition on moving to the High Courts of India regarding enforcement of statutory rights of
personal liberty under Article 226.
The presidential order proclaiming emergency was against the principle of natural law and other
underlying fundamental principles of law. When a law on preventive detention has been introduced
then the same should conform to the conditions set by the law.
Article 21 is not the only torchbearer of the right to life and personal liberty, there are rights that are
not fundamental rights but are statutory or natural rights, these rights were not affected by
DECISION: A.D.M. JABALPUR V. S. SHUKLA
This case was heard by a five judges bench (A.N. Ray, M. Hameedullah Beg, Y.V.
Chandrachud, Hans Raj Khanna, P.N. Bhagwati). Four out of five judges ruled in favor of the
state and held that during an emergency the fundamental rights guaranteed by the
Constitution of India to the citizens shall not be available. All rights shall stand extinguished
in the light of presidential order. (Justice Hans Raj Khanna gave the sole dissenting opinion).
It was held that none of the citizens of the country shall have the option of moving the High
Court for writ of Habeas Corpus if the Presidential Order proclaiming emergency said so and
along with that all other proceedings of the court shall remain suspended till the emergency
continues.
Justice Hans Raj Khanna gave a dissenting judgment and this dissenting judgment paved the
way for the future development of law. He was of the view that Article 21 which talks about
the right to life and personal liberty are the basic tenets of society and the state cannot
deprive a citizen of his/her life and personal liberty without due authority of law- his opinion
emphasizes on rule of law, that means the supremacy of law over government- the majority
took the view that rule of law is intractable as it cannot override emergency provisions.
With regard to rule of law, the majority took the view that the constitution is the rule of law-
no one can rise above the rule of law as prescribed in the Constitution.
RULE OF LAW: A.D.M. JABALPUR V. S.
SHUKLA
• Dissenting judge Khanna in his opinion, attempts to put a curb on the vast administrative powers during
the proclamation of emergency. In the process, he relies on and discusses the concept of the Rule of Law.
• Rule of law is the antithesis of arbitrariness. Even if there have been deviations from the rule of law,
such deviations have been covert and disguised for no government in a civilized country is prepared to
accept the ignominy of governing without the rule of law.
• 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 every State, the problem arises of reconciling
human rights with the requirements of public interest. Such harmonizing can only be attained by the
existence of independent courts which can hold the balance between citizens and the State and compel
Governments to conform to the law.
• Even in the absence of art. 21 in the Constitution, the State has got no power to deprive a person
of his life or liberty without the authority of law. This is the essential postulate and basic
assumption of the rule of law and not of men in all civilized nations. 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 principle that no one shall be deprived of his life or liberty without the authority of law is
rooted in the consideration that life and liberty are priceless possessions that cannot be made the
plaything of individual whim and caprice and that any act which has the effect of tampering with life
RULE OF LAW: A.D.M. JABALPUR V. S.
SHUKLA
• Justice Khanna’s discussion on rule of law- the definition relevant to contemporary
democracies:
• It would not be correct to consider rule of law as a vague or nebulous concept- the rule of
law demands in the first place that the powers of the Executive should not only be derived
from law but that they should be limited by law.
• Whatever might be the position in peripheral cases, there are certain aspects that constitute
the very essence of the rule of law. The absence of arbitrariness and the need for the
authority of law for official acts affecting the rights of individuals prejudicially is one
of those aspects. The power of the courts to grant relief against arbitrariness or absence of
authority of law in the matter of the liberty of the subject may now well be taken to be a
normal feature of the rule of law.
• The essence of rule of law is that public officers are governed by law, which limits their
powers. It means Government under the law- the supremacy of law over the Government as
distinct from Government by law-the mere supremacy of law in society generally-which
would apply also to totalitarian states.
IMPORTANT PARAS TO FOCUS: A.D.M.
JABALPUR V. S. SHUKLA
• Justice Khanna (minority opinion/dissent)
• 199, 200, 201, 202, 204
• 231 (identification of the problem with treating rule of law as mere adherence to what law is), 232
(Dicey), 233, 234 (Discussion re Ram Jawaya Kapur)
• 248, 249 (Jennings and Rule of law)
• Justice Beg
• 323- Dicey’s rule of law (compare this with the stand J. Khanna takes- the majority opinion while
discussing Dicey, relies on its mechanical, limited scope, as was propounded by Dicey, while Justice
Khanna’s minority opinion interprets Dicey as relevant to modern democracies- a wider meaning of rule
of law that goes beyond merely what law is)
• 324
• 336- Rule of law is the constitution, 397-398-399
• Justice Chandrachud
• 553- Dicey’s definition highlights the problems of habeas corpus, 558 (how its justified to suspend
liberty!!), 560, 561
