Rule of Law

The concept of Rule of Law is that the state is governed, not by the ruler or the
representatives of the people but by the law. A country that enshrines the rule of
law would be one where the Grundnorm of the country, or the basic and core law
from which all other law derives its authority is the supreme authority of the state.
The rulers or the representatives are governed by the laws derived out of the
Grundnorm and their powers are limited by the law. The King is not the law but the
law is king.

According to Prof. Bakshi, rule of law is universally accepted as an ideal, but is not
practiced. To support this contention he gave limited access to justice, pendency of
cases, corruption, and lawlessness as the examples of denial of the rule of law.

Prof. M.P.Singh says rule of law was conceived with the rise of natural law
because people are born with certain inalienable rights. The entire scheme under
Parts III and IV is the reflection of rule of law.

The origins of the Rule of Law theory can be traced back to the Ancient Romans
during the formation of the first republic; it has since been championed by several
medieval thinkers in Europe such as Hobbes, Locke and Rousseau through the
social contract theory. Indian philosophers such as Chanakya have also espoused
the rule of law theory in their own way, by maintaining that the King should be
governed by the word of law. The formal origin of the word is attributed to Sir.
Edward Coke, and is derived from French phrase la principe de legalite which
means the principle of legality. The firm basis for the Rule of Law theory was
expounded by A. V. Dicey and his theory on the rule of law remains the most
popular. Diceys theory 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:

This has always been the basic understanding of rule of law that propounds that the
law rules over all people including the persons administering the law. The law
makers need to give reasons that can be justified under the law while exercising
their powers to make and administer law.

Equality before the Law:

While the principle of supremacy of law sets in place cheques and balances over
the government on making and administering law, the principle of equality before
the law seeks to ensure that the law is administered and enforced in a just manner.
It is not enough to have a fair law but the law must be applied in a just manner as
well. The law cannot discriminate between people in matters of sex, religion, race
etc. This concept of the rule of law has been codified in the Indian Constitution
under Article 14 and the Universal Declaration of Human Rights under the
preamble and Article 7.

Predominance of legal spirit:

In including this as a requirement for the rule of law, Diceys belief was that it was
insufficient to simply include the above two principles in the constitution of the
country or in its other laws for the state to be one in which the principles of rule of
law are being followed. There must be an enforcing authority and Dicey believed
that this authority could be found in the courts. The courts are the enforcers of the
rule of law and they must be both impartial and free from all external influences.
Thus the freedom of the judicial bodies becomes an important pillar to the rule of
law.

One of the first attacks on Diceys meaning of the rule of law came in 1928 when
William Robson wrote his celebrated book Justice and Administrative Law. He
pointed out that there were colossal distinctions between the rights and duties of
private individuals and those of administrative organs of government, even in
Diceys time. Robson also convincingly showed how dicey had misinterpreted
French Law, where the droit administratif was not intended to exempt public
officials from the rigour of private law, but to allow experts in public
administration to work out the extent of official liability. Robson also noted the
extent of Diceys misrepresentation that disputes between officials and private
individuals were dealt with by the ordinary courts. He pointed to the growth of
special tribunals and inquiries that had grown up to decide these disputes outside
the courts, and was in no doubt that a vast body of administrative law existed.

It should be remembered that Dicey believed in the principle of Whig Party. He

believed in a laissez-faire economic system and had resisted the increasing
regulatory role of the state. After Robson, Ivor Jennings continued the attack on
Dicey. According to Jennings, if the rule of law means that the state exercises only
the functions of carrying out external relations and maintaining order, it is not true.
If it means that the state ought to exercise these functions only, it is a rule of policy
for Whigs (if there are any left).
Despite the criticism, Diceys rule of law remains a compelling idea, although
variously interpreted.

Some more points on Diceys Concept of Rule of Law

Supremacy of law has three components, namely,

1. Parliamentary supremacy

2. Certainty of law

3. Predominance of law

Equality before law has two components, namely,

1. Obedience to law

2. Logical Interpretation

However, if we talk about the practical application of the rule of law, the position
was different. Even Dicey thought that he needs to change his theory keeping in
mind the practical aspects.

Reasons why Dicey made changes to his theory:

1. Disobedience to law.

2. Resistance to pay taxes.

3. Increasing lawlessness among the clergy with regard to the law of the
Church.

4. Local Government Board v. Alridge- In this case, the Court supported

presence of administrative officials in functioning of administrative
tribunals. They act as experts. They may not be familiar with law and
procedural nuances yet they carry administrative functions through
experience.

After this, Dicey was of the view that discretion can be given to the
administrative officials but the same should be accompanied with limits.

Give example of Articles 309 to 312.

5. Board of Education v. Rice- In this case, House of Lords expressed the view
that an administrative department had the power to decide the question of
law.

Following the above incidents, Dicey made some changes to his theory. Dicey
wrote that any power conferred on administrative tribunals must be exercised in
strict conformity with the terms of statute. Statutory or quasi-judicial authority
is not bound to follow rules of procedure applied in a court of law, but must act
with judicial fairness.

Later Developments

1. Jeffrey Jowell says that exclusion of arbitrary discretion is arbitrary power.

Discretionary powers are required to be vested in the government bodies but
need of effective control over the abuse of discretion and ways to ensure the
fair exercise of official power is essential.

2. In 1932, Donoughmore Commission was set up in England. The terms of

reference of the Commission required it to investigate the question that
delegated legislation violates rule of law. The ultimate finding of the
committee was it does not. This commission was highly influenced by later
changes made by Dicey.

3. C.A.Allen was of the view that there must be legal control over all executive
actions.

4. In 1950, Franks Committee was formed to revive the Diceyian notion of rule
of law. The committee recommended that administrative decision

5. Weber says that rules facilitate obedience as they are applied uniformly.

6. Prof. Peter H.Schuck is his work rule of Law- Institutions and Practices
writes:

A. rule of law is the most prestigious heritage of mankind as it channels

violent propensities of human beings into a peaceful regime.

B. It seeks formal equality, due process and justice.

C. Rule of law is a necessary precondition for all lifes blessings.

In the contemporary context, rule of law performs two vital functions:

1. It is a principle of institutional morality. As such, it guides all forms of law

making or law enforcement.

2. Legal certainty and procedural fairness are the fundamental requirements of

governance.

Limits to rule of law

1. Power of judicial review

2. Parliament

3. Absence of written constitution

4. Discretionary powers must provide limits to exercise of power.

K.C. Davis suggests three different controls with respect to discretionary powers:

1. It should be confined by rules.

2. Structure it through open and transparent procedure.

3. Internal mechanism to have checks on administrative discretion.

Maitland accepting rule of law as cardinal principle says that general laws
howsoever bad, interfere less with freedom than decisions based on previously
known rules.

Hayek says that essence of rule of law is that it enables us to predict others
behavior.

Rule of law is deeply entrenched in the legal system of India. In State of Madhya
Pradesh and Anr. vs. Thakur Bharat Singh the supreme court observed that We
have adopted under our Constitution not the continental system but the British
system under which the rule of law prevails. Every Act done by the Government or
by its officers, if it is to operate to the prejudice of any person, must be supported
by some legislative authority.

In Additional District Magistrate, Jabalpur vs. Shivakant Shukla, Justice A.N.Ray

observed that The Constitution is the mandate. The Constitution is the rule of law.
No one can arise above the rule of law. Rule of law is not a law of nature consistent
and invariable at all times and in all circumstances. The certainty of law is one of
the elements in the concept of the Rule of Law but it is only one element and,
taken by itself, affords little guidance. The essential feature of Rule of Law is that
the judicial power of the State is, to a large extent, separate from the Executive and
the Legislature. Rule of Law is a normative as much as it is a descriptive term. It
expresses an ideal as much as a juristic fact. The Rule of Law is not identical with
a free society. If the sphere of the Rule of Law involves what can be called the
"Existence of the Democratic System" it means two things. In the first place the
individual liberties of a democratic system involve the right of the members of
each society to choose the Government under which they live. In the second place
come freedom of speech, freedom of assembly and freedom of association. These
are not absolute rights. Their exceptions are justified by the necessity of
reconciling the claims of different individuals to those rights. The criterion
whereby this reconciliation can be effected is the concern of the law to ensure that
the status and dignity of all individuals is to the greatest possible extent observed.

He also observed that there cannot be any rule of law other than the constitutional
rule of law. There cannot be any pre Constitution or post Constitution Rule of Law
which can run counter to the rule of law embodied in the Constitution, nor can
there be any invocation to any rule of law to nullify the constitutional provisions
during the times of emergency.

In the same case, Justice H.R. Khanna observed that Rule of law is the antithesis of
arbitrariness. Rule of law is now the accepted norm of all civilised societies. 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.

In Chief Settlement Commissioner, Rehabilitation Department, Punjab and Ors.

etc. v. Om Parkash and Ors. a Division Bench of the Supreme Court observed that
in our constitutional system, the central and most characteristic feature is the
concept of the rule of law which means, in the present context, the authority of the
law courts to test all administrative action by the standard of legality. The
administrative or executive action that does not meet the standard will be set aside
if the aggrieved person brings the appropriate action in the competent court.

In S. G. Jaisinghani v. Union of India and Ors., Ramaswami J. speaking for the

Constitution Bench of this Court observed as under:
In this context it is important to emphasise that the absence of arbitrary power is
the first essential of the rule of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined limits. The rule of
law from this point of view means that decisions should be made by the application
of known principles and rules and, in general, such decisions should be predictable
and the citizen should know where he is. If a decision is taken without any
principle or without any rule it is unpredictable and such a decision is the antithesis
of a decision taken in accordance with the rule of law.

Read last para at page 189 pranjape