CONCEPT OF THE RULE OF LAW

While in Europe, administrative law has been. for a century and a half, a separate branch o f
law and a subject for academic study , it is only during the last few decades that, in the
United States and the common law world, it has attained full stature as a 'respectable ' field of
study for the law students and practitioners. The reason seems to be that the people had a
mistrust regarding the growth of administrative process and hence did not recognise its
independent existence. The weapon which the people in England used to strike and the
growth of administrative law was Dicey’s formulation of the concept of rule of law.
The term 'Rule of Law' is derived from the French phrase la principe de legalite (the principle
of legality) which refers to a government based on principles of law and not of men. In this
sense the concept of la principe de legalite was opposed to arbitrary powers.
The concept of the Rule of Law is of old origin. Edward Coke is said to be the originator of
this concept, when he said that the King must be under God and Law and thus vindicated the
supremacy of law over the pretensions of the executives. In India, concept of Rule of Law
can be traced to Upnishad. It provides—Law is the King of Kings. It is more powerful and
rigid than they (Kings). There is nothing higher than law. By its powers the weak shall
prevail over the strong and justice shall triumph. Thus in monarchy, the concept of law
developed to control the exercise of arbitrary powers of the monarchs who claimed divine
powers to rule.

In a democracy, the idea of the Rule of Law means that those in power must be able to
explain and justify that their actions are both legally correct and fair to society. Professor
A.V. Dicey expanded on this idea in his lectures at Oxford University. Dicey believed in
individual freedom and lived during a time in England when the government did not interfere
much in people’s lives (the laissez-faire era). Because of this, Dicey’s version of the Rule of
Law did not support giving wide powers to government officials. He believed that whenever
officials have too much freedom to make decisions (discretion), it can lead to unfairness and
misuse of power (arbitrariness).

The Rule of Law is a strong and evolving idea. Like many such concepts, it cannot be defined
precisely. However, this doesn’t mean people disagree on the core values it stands for.The
phrase “Rule of Law” is used in contrast to the “rule of man” or simply “rule according to
law”. Even in dictatorships, governments work under some laws—but that doesn’t mean the
Rule of Law exists there. Just having laws is not enough. For the Rule of Law to exist, the
law itself must have authority, and it must be applied fairly and justly.Here, the word “law”
includes two ideas—‘jus’ (meaning justice or natural law) and ‘lex’ (meaning written or
enacted law). So, the Rule of Law is not just about following any law, but about following
just and fair laws. In this way, the Rule of Law is more of an ideal, something we aim for. It
is actually a modern version of what used to be called natural law. Throughout history,
people have believed in some higher principle beyond man-made rules. In legal theory:

 The Romans called it ‘jus naturale’ (natural law),

 Medieval thinkers called it the ‘Law of God’,
 Philosophers like Hobbes, Locke, and Rousseau referred to it as the ‘social contract’
or natural law, and
 Today, we use the term ‘Rule of Law’ to express the same idea.

The basic concept of the Rule of Law is not a well-defined legal concept.
 The courts would not invalidate any positive law on the ground that it violates the
contents of the Rule of Law. However, in ADM v. Shivakant Shukla, popularly known as
Habeas Corpus case, an attempt was made to challenge the detention orders during the
Emergency on the ground that it violates the principles of the Rule of Law as the
"obligation to act in accordance with rule of law ... is a central feature of our
constitutional system and is a basic feature of the Constitution". Though the contention
did not succeed and some justices even went on to suggest that during an emergency, the
emergency provisions themselves constitute the Rule of Law, yet if the reasoning of all
the five opinions is closely read it becomes clear that the contention was accepted, no
matter it did not reflect in the final order passed by the court. Therefore, even in spite of
the unfortunate order to the effect that the doors of the court during an emergency are
completely shut for the detenus, it is gratifying to note that the concept of Rule of Law
can be used as a legal concept.
In the opinion of some of the judges constituting a majority in Keshavananda Bharti vs State
of Kerala, the rule of law was considered as an aspect to the doctrine of basic structure of the
constitution, which even the plenary power of parliament cannot reach to amend.The Rule of
Law is a fundamental principle of the Indian Constitution and is considered an essential part
of its basic structure. The Supreme Court of India has consistently held that any arbitrary
action by the executive or legislature, especially if it attempts to avoid judicial review, is
unconstitutional. This principle has been clearly upheld in several landmark cases.

One significant case is Indira Nehru Gandhi v. Raj Narain (1975). In this case, the 39th
Constitutional Amendment had inserted Article 329-A(4) to exclude the election of the Prime
Minister from judicial review. The Supreme Court struck down this provision, stating that it
violated the basic structure of the Constitution, particularly the Rule of Law and the principle
of free and fair elections.

 Justice Khanna and Justice Chandrachud specifically held that Article 329-A(4)
violated the basic structure.
 Chief Justice A.N. Ray said it offended the Rule of Law because the validation of the
Prime Minister’s election was not based on any law.
 Justice Mathew held that the clause violated the Rule of Law which requires that
arbitrary official actions be excluded in all spheres of governance.
 Justice Beg emphasized that removing the Supreme Court’s jurisdiction to hear such
cases harmed the principles of justice and democracy.

Another important case is P. Sambamurthy v. State of Andhra Pradesh, where Article 371-
D(5) was struck down. This provision gave the State Government the power to nullify
decisions of the Administrative Tribunal. The Court held that this was against the Rule of
Law and violated judicial independence, as it allowed the executive to override judicial
decisions. The Court ruled that judicial review is a basic feature of the Constitution, and it
ensures that all actions by the government and authorities are in accordance with the law.
Thus, through these rulings, the Supreme Court reaffirmed that:

 Rule of Law is a part of the basic structure of the Constitution.

 Judicial review cannot be taken away.
 No authority is above the Constitution or beyond the reach of the law.

These cases serve as milestones in protecting constitutional values and preventing abuse of
power by any organ of the State.
The Supreme Court observed in Som Raj vs State of Haryana that the absence of arbitrary
power is the first postulate of rule of law upon which whole 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.

The concept of Rule of Law has been deeply discussed and developed by Indian courts
through a series of landmark decisions. One of the fundamental aspects of Rule of Law, as
affirmed by the Supreme Court in Som Raj v. State of Haryana (1990), is the absence of
arbitrary power. The Court observed that this is the first postulate upon which the entire
constitutional framework stands. If public authorities exercise their powers without any rules,
principles, or guidance, then such discretion amounts to the antithesis of Rule of Law.

Judicial decisions reveal that the Rule of Law in India has evolved to include both negative
and positive dimensions. It not only places restrictions on the misuse of government power
but also imposes an affirmative duty of fairness on the government. This means that the State
is expected to act justly, reasonably, and within its lawful limits.

Legal scholar Prof. Upendra Baxi summarized the Indian judicial perspective by stating that
power should not be exercised arbitrarily. It should only be used:

 For the purpose for which it was given,

 Within the limits of statutory authority, and
 In a manner that is not arbitrary in its true sense.

Merely preventing arbitrary action is not sufficient to uphold the Rule of Law. Courts in India
have gone further by insisting on a positive obligation upon the State to follow principles of
fairness and justice.

A key aspect of this is the enforcement of the rules of natural justice. Courts have ruled that
these rules must be followed not just in quasi-judicial decisions, but also in purely
administrative actions. Though the scope and content of natural justice may vary depending
on the context and judicial interpretation, the requirement of fairness and procedural justice
remains consistent.

Another important feature is the right to access information. The Indian judiciary has
repeatedly emphasized the importance of providing reasons for administrative decisions,
especially where such decisions affect the rights and interests of individuals. Although there
is no clear and uniform legal requirement to always provide reasons, courts have promoted
the idea that doing so ensures greater accountability and reduces arbitrariness.

The Rule of Law has also been extended to ensure fair treatment by the State in economic
matters. For example, when the government gives assurances to individuals in business
dealings, it is bound by the principle of estoppel—it cannot go back on its word if others have
relied on it in good faith. Similarly, before the State blacklists a contractor or refuses to
engage in trade with a party, it must follow the rules of natural justice.

Courts have become increasingly vigilant in ensuring that the State’s dominance does not
compromise individual rights. They have insisted that the principle of fair play must be
respected, regardless of the superior bargaining power of the State. In cases involving losses
or injuries caused by the State’s economic activities, Indian courts have even sought to limit
the defence of sovereign immunity, thereby expanding protection for individual citizens.
The term "Rule of Law" can be understood in two primary senses:

* Formalistic/Ideological Sense: In this sense, the Rule of Law refers to a system where laws
are applied equally to all individuals and where there is an organized, formal legal process. It
emphasizes fairness in application and the existence of a clear legal framework. This
perspective focuses on the form of the law and its consistent application, ensuring that power
is exercised within established legal boundaries.

* Ideological Sense (Broader View): This broader interpretation views the Rule of Law not
just as a formal application of rules, but as an embodiment of certain ethical ideals and
principles. It encompasses concepts like equality, freedom, and accountability, ensuring that
the law serves to protect individual rights and promote social well-being. This sense
emphasizes the substance of the law and its alignment with fundamental human values,
ensuring that the exercise of public power is both just and reasonable.

Formulation of the Concept of Rule of Law:

The concept of the Rule of Law represents values and institutions crucial for a well-
functioning society. It signifies that public power, whether executive, legislative, or judicial,
should be exercised according to established legal principles, not arbitrary discretion.
Essentially, it means that "man is governed by law and not by arbitrary power." This
principle seeks to prevent the arbitrary exercise of power by the government and ensure that
all actions are taken under the authority of law. The Rule of Law aims to uphold justice,
protect individual liberty, and foster a stable and predictable legal environment.

Rule of Law in France, USA, and India:

* France: Dicey initially viewed the French system, particularly its administrative law and
the Conseil d'État, with suspicion. He believed it lacked the "individual liberty" and "freedom
of the press" found in common law countries like England. He considered administrative
jurisdiction in France as a system where public officials had a degree of discretionary power,
making them less accountable to ordinary courts. However, later scholarship, particularly
from institutions like the International Commission of Jurists (Delhi Declaration, 1959),
recognized the advancements in French administrative law, noting that it had evolved to
protect citizens' rights and ensure accountability, often surpassing the common law in certain
aspects. The Conseil d'État in France, though initially seen as a departure from Dicey's
principles, has proven to be an effective body in ensuring administrative justice.

* USA: In the United States, the Rule of Law is deeply embedded in its constitutional
framework, particularly through the concept of judicial review and the protection of
individual liberties. The Supreme Court plays a crucial role in upholding the Rule of Law by
ensuring that all laws and governmental actions comply with the Constitution. The idea of
"due process" is central to the American understanding of the Rule of Law, guaranteeing fair
legal proceedings and protection against arbitrary governmental action.

* India: India, as a democratic republic, has embraced the Rule of Law as a fundamental
principle, enshrined in its Constitution. The judiciary in India, especially the Supreme Court,
has played a proactive role in upholding and expanding the scope of the Rule of Law.
Landmark judgments like Sheela Barse v. State of Maharashtra and S.P. Gupta v. Union of
India underscore the judiciary's commitment to ensuring transparency, accountability, and the
protection of fundamental rights. The Indian Constitution, with its emphasis on equality
before the law and equal protection of the laws, strongly reflects the core tenets of the Rule of
Law.

Principles of Dicey's Law:

A.V. Dicey's formulation of the Rule of Law, primarily based on the English Constitutional
Law, emphasizes three core principles:

* Absence of Discretionary Power: Dicey argued that justice should be done through known
principles, and discretion should be absent, to avoid arbitrariness. This means that no person
should be subject to arbitrary power, and all actions of the government must be authorized by
law. This principle implies:

* Absence of special privileges for government officials or any other person.

* All persons, irrespective of status, must be subject to the ordinary courts of the land.

* Equality Before the Law: This principle states that all individuals, regardless of their
position or status, are subject to the same ordinary law of the land, administered by the
ordinary courts. This ensures that no one is above the law, including government officials,
and that everyone has equal access to justice. This also means that everyone should be
governed by the law passed by the ordinary legislative organs of the State.

* The Rights of the People Result from Judicial Decisions: Dicey believed that individual
rights and freedoms in England were not derived from a formal constitutional declaration but
were a consequence of judicial precedents and the ordinary law of the land enforced by the
courts. In his view, the courts were the ultimate guarantors of individual liberty, and a strong,
independent judiciary was essential for the protection of rights.

Evolution of Dicey's Thesis:

Dicey's initial perspective on the Rule of Law, particularly his critique of the French system,
was shaped by the political and intellectual climate of his time, marked by a strong bias
towards English common law. He viewed the French droit administratif with suspicion,
seeing it as a system that conferred special privileges on state officials and lacked the clear
separation of powers he believed was essential for liberty.

However, subsequent scholarship and the evolution of administrative law globally have
presented a more nuanced view. Critics of Dicey, such as Ivor Jennings and Professor
Cosgrove, argued that his understanding was somewhat narrow and did not fully appreciate
the complexities of administrative systems outside of England. They pointed out that even in
England, administrative discretion was a reality, and that the French system, with the Conseil
d'État, provided effective mechanisms for accountability and protection of rights, often more
efficiently than the English common law courts at the time.

Over time, the understanding of the Rule of Law has broadened beyond Dicey's strict
interpretation. Modern perspectives acknowledge that while discretion can be abused, it is
also necessary for effective governance. The focus has shifted to ensuring that discretion is
exercised fairly, transparently, and within legal bounds, subject to appropriate oversight. The
Rule of Law is now seen as a dynamic concept that adapts to societal needs, embracing both
formal legality and substantive justice, and recognizing the importance of independent
administrative tribunals and specialized courts in ensuring accountability and protecting
individual rights.