RULE OF LAW

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.’’

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.

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.

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. The 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.

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-

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 by 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 India, dicey’s concept of rule of law cannot be said to be followed in strict sense, there are
certain exceptions provided under the Indian Constitution and other laws. For example:

1. Existence of wide discretionary power to the executive-

President and governor of this state are given wide discretionary power in relation to certain
matters under the Indian Constitution. Under Article 72 and 161, the president and the governor
respectively have a prerogative to grant pardons, reprieves, respite or remissions of punishment
or to suspend, remit or commute the sentence of any person convicted of any offence. Article
85 provides the president with discretion in relation to the prorogation of either house of the
parliament and the dissolution of the house of people. The governor on the other hand has
discretion in sending the report to the president under Article 356 of the constitution and in
reserving bills for consideration under Article 200.

Police who are a part of the executive are given wide power of arrest without warrant in case
of cognizable offences. Criminal courts in India have wide discretionary power in providing
sentences.

2. Immunities and privileges-

Under Indian constitution equality before law doesn’t mean that the power of a private citizen
should be the same as public official. Public officials like ministers, local authorities, public
officers and others of the like have many powers, immunities and privileges which ordinary
citizens don’t have. For example-

 The President/Governor is not answerable to the court of law in discharge of his

executive functions.
 No criminal proceedings whatsoever can be instituted against President or Governor of
state, while he is in office.
 No civil proceedings in which relief is claimed can be filed against the President or
Governor except after an expiration of a 2 month notice that is served on him.

Under International laws, the visiting heads of state, heads of government, ministers, officials
and foreign diplomats who are posted in the country are not subjected to jurisdiction of local
courts in discharge of their official functions.

Rule of Law and Indian Constitution

Rule of law has no fixed articulation in the Indian constitution though the Indian courts refer
to this phrase in variety of its judgements. The maxim ‘The King can do no wrong’ has no
application in India and all public authorities are made subject to jurisdiction of ordinary law
courts and to the same sets of laws. In Indian constitution is the law of the land and prevails
over Judiciary, the Legislature and the Executive. These three organs of the state have to act
according to the principles engraved in the constitution.

Under the Indian constitution the rule of law is incorporated in many of its provisions. For
example the object of achieving equality, liberty and justice are reflected in the Preamble to the
Indian constitution. Article 14 guarantees right to equality before law and equal protection of
law. It states that no one shall be denied the equality before law and the equal protection of the
law by the state. The direct connotation of these words provided under Article 14 is that the
law is supreme and there is no scope of arbitrariness as everybody is governed by the rule of
law. Law treats everybody equally without any biases, which is the basic requirement of Rule
of Law. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Supreme court in clear
words observed that Article 14 strikes at arbitrariness in state actions and ensures fairness and
equality in treatment. Rule of law which is the basic feature of the Indian Constitution excludes
arbitrariness. Where there is arbitrariness there is denial of Rule of Law. Art 15, 16, 23 further
strengthened the ideal of equality by the incorporation of protective discrimination as a means
of ensuring equality amongst equals.

Article 13 of the Indian Constitution is another example which upheld the doctrine of Rule of
Law in India. The “laws’’ defined under Article 13 as rules, regulations, bye-laws and
ordinances can be struck down if they are contrary to the constitution of India. In
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225, the Supreme Court has included
the Rule of Law as the basic feature of the Constitution. In this case, though the Supreme Court
upheld the amending power of the Parliament which extends to every Article provided under
the Constitution but has limited that power by providing that such power cannot be used in
amending the basic feature of the Constitution.

Fundamental rights are universal and inalienable rights. Such fundamental rights can only be
protected by the state that respects the Rule of Law. Fundamental rights are provided under
part III of the Indian Constitution. Such Fundamental Rights cannot be abrogated and can be
enforced under Article 32 and 226 of the Constitution. The Indian Constitution is the supreme
law of the land and every law has to be in conformity with the Constitution. If any law is in
violation of any of the provision of the Constitution, especially the fundamental rights shall be
declared void. One of the basic postulates of the Rule of Law besides justice and equality is
Liberty. The fundamental right to life and personal liberty is provided under Article 21 of the
Constitution. This Article postulates that no person shall be deprived of his life and liberty
except by the procedure established by law, thus making the law supreme. Such right also
guarantees that no person is convicted except for the violation of law which is in force at the
time of commission of an offence and not for any other act. The principle of double jeopardy
and self-incrimination is also well recognized in the Indian Constitution.
Article 19 which provides various freedoms to the individual is again something which runs
on the principles of Rule of Law as these freedoms can only be curtailed on the grounds of
reasonableness which should be satisfied on the basis of Article 14, 19 and 21 of the
Constitution. These three articles are so essential to the Indian Constitution that they are often
called as the Golden Triangle Articles of the Constitution. In E.P Royappa v. State of Tamil
Nadu & Anr., (1974) SCR (2) 348, the Supreme Court held that for the state to justify its action
of curtailment of fundamental right it has to fulfil all the requirements provided under Article
14, 19 and 21.

Another significant derivative of rule of law is judicial review. Judicial review is the essential
part of the rule of law. It not only protects the constitutional principles but also checks
administrative actions and its legality. All actions of the state authorities and bureaucracy are
all subject to judicial review and are accountable to the courts for the reasonableness of their
actions.

These are the essential ingredients and the basic assumption of rule of law and not of men in
all civilized nations. The Indian constitution has also provided adequate provision for the
independence of judiciary as it is the guardian of the constitution and fundamental rights of the
citizens. Judicial review is considered as one of the basic features of the constitution. Hence
the principles of rule of law run entirely through the fabric of the Indian Constitution.

Indian Case Laws

As mentioned earlier, rule of law is not expressly provided under the Indian Constitution but it
has been assertively pronounced as the essential part of the Constitution by the Supreme Court
through several judgements. Some of them are as under:

1. A.K Gopalan Vs State of Madras, AIR 1950 SC 27

Also known as the Habeas Corpus case, the order of detention passed during emergency was
challenged in this case on the grounds that such order is violative of the principles of rule of
law which is the basic feature of the Indian Constitution. The issue that was before the Supreme
Court to decide was whether there is any rule of law in India apart from Article 21 of the
Constitution. The majority bench in the case decided the matter in the negative while Justice
Khanna gave a dissenting Judgement.

He observed that the Rule of Law is accepted in all civilised society and is considered as a
symbol of society being free. He further observed that Rule of Law is the only means of
archiving the balance between individual liberty and public order. Hence he was of the opinion
that even if there was no such Article like Article 21 in the Indian Constitution the state has no
power to deprive a person of his life and liberty without the authority of law.

2. Indra Nehru Gandhi vs. Raj Narayan, 1975 SCR (3) 333

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 antithesis 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.

3. P. Sambamurthy v. State of Andhra Pradesh, AIR 1970 SC 422

In this case the Supreme Court upheld the principles of rule of law as the basic structure of the
Indian Constitution. Clause 5 of Article 371-D was challenged before this court which provided
the government with the power to modify or annul the administrative tribunal’s order. Chief
Justice Bhagwati in this case held clause 5 of Article 371-D as unconstitutional on the basis of
doctrine of basic structure. He held that clause 5 is contrary to the principle of rule of law which
is the basic structure of the Constitution and is thus unconstitutional. Judicial review which is
one of the tenets of rule of law is provided to the courts under the constitution to ensure that
the law is observed and is complied with by the executive and other authorities and such power
of judicial review cannot be taken away from the court. Any such attempt would be against the
Rule of law and thus ultra vires.

4. Yusuf Khan v. Manohar Joshi, AIR 1999 SCW 4768

The SC laid down that the constitution places a duty over the state to maintain and preserve
law and order and to see that no act violence overpasses the mandate provided by the rule of
law.

Hence, it is quite evident that the concept of rule of law is gaining importance and attention
and judicial efforts are made to make it stronger.

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.