A.V DICEY AND THE RULE OF LAW Shreya Suresh Roll No. 611 B.B.A/L.L.B (Business Law Hons.

) INTRODUCTION The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law. The Rule of law, according to Gamer, is often used simply to describe the stately words, the term 'rule of law' indicates the state of affairs in a country where, in main, the law rules.1 Law may be taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognized and of affairs in a country where, in main, the law is observed and order is kept. 2 It is an expression synonymous with law and order.3 The basis of Administrative Law is the 'Doctrine of the Rule of Law'. It was expounded for the first time by Sri Edward Coke4, and was developed by Prof. A.V.Dicey in his book 'The law of the Constitution'5 published in 1885. According Coke, in a battle against King, he should be under God and the Lank thereby the Supremacy of Law is established. Dicey defined the Rule of law as, .with us every official, from Prime Minister down to constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen..6

1 2

Tamanaha, Brian. On the Rule of Law, page 47 (Cambridge University Press, 2004). Bingham, Thomas. "The Rule of Law", Centre for Public Law, Faculty of Law, University of Cambridge (200611-16). 3 "The Rule of Law Inventory Report", Hague Institute for the Internationalization of Law (HiiL), Hague Academic Coalition (2007-04-20). 4 Block, Herman (1929). Edward Coke, oracle of the law. Boston: Houghton Mifflin Co. OCLC 560680 5 Dicey A V (1985). An Introduction to the Study of the law of constitution, New Delhi: Universal Law Publishing Co Pvt. Ltd 6 ibid

Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France. In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and private individual it was tried not by not by an ordinary court but by a special administrative court. 7 From this, Dicey concluded that this system spelt the negation of the concept of rule of law which is secret of Englishmans liberty. Therefore, Dicey concluded that there was no administrative law in England.8 Dicey regarded rule of law as the bedrock of the British Legal System: 'Fins doctrine is accepted in the constitutions of U.S.A. and India.9 According to Prof. Dicey, a rule of law contains three principles or it has three meanings as stated below: 1. Supremacy of Law or the First meaning of the Rule of Law 2. Equality before Law or the Second meaning of the Rule of Law: and 3. Predominance of Legal Spirit or the Third meaning of the Rule of Lim. Supremacy of Law Explaining the first principle, Dicey stated 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 prerogative or even wide discretionary power on the part of the Government.10 According to him the Englishmen were ruled by the law and law alone. A man may be punished for a breach of law, but can be punished for nothing else. As Wade says the rule of law requires that the Government should be subject to the law, rather than the law subject to the Government. 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

7 8

Massey I P (2008). Administrative law, Lucknow: Eastern Book Company. Takwani CK (2008). Lectures on Administrative law, Lucknow: Eastern book Company. 9 Venkat Iyer (2008). Citizens Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah, Nagpur: Lexis Nexis Butter Worths, Wadhwa. 10 Dyzenhaus David (1999). Recrafting the Rule of Law: The Limits of Legal Order, USA: Hart Publishing oxford.

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.11 Equality before law Explaining the second principle of the rule of law, Dicey stated 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.12 According to him, in England, all persons were subject to one and the same law, and there were no separate tribunals or special courts for officers of the Government and other authorities.13 He criticized the French legal system of droit administratif in which there were distinct 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,14 Dicey himself saw that administrative authorities were exercising judicial functions 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.15 According to Dicey, any encroachment on the jurisdiction of the courts and any restrictions on the subject's unimpeded access to them are bound to jeopardize his rights. Predominance of Legal Spirit Explaining the third principle, Dicey stated that in many countries rights such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. 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. Thus, Dicey emphasized 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.
11

Mathew Stephenson, The Rule of law as a goal of Development policy http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm 12 Khanna H R. Rule of Law & democracy-friends or foes? 13 Supra Note 7 14 Kumar C. Raj. International Human Right Perspective on the Right to Education: Integration of Human Rights and Human Development in the Indian Constitution in Tulane International and Comparative Law. Vol-12, PP 237 15 Mani, Rama. Exploring the rule of law in theory and practice, Civil War and Rule of Law. PP 21-45

He stated: The Law of the Constitution, the rules 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.16 F.A. HAYEK ON THE RULE OF LAW17: Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan ones individual affairs on the basis of this knowledge. Broader views on the rule of law, such as the judgment of Brennan, Deane, and Dawson JJ in Chu Kheng Lim v Minister for Immigration, will also recognize the inherent relationship between government under law and the separation of powers doctrine.18 If Diceys formulation were a strict standard, then it would be quite easy to point out a number of circumstances in which that standard has been departed from by states. It can be noted that Raz has not limited himself to Diceyan theory in his criticisms of the rule of law. Raz argues that the rule of law is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.19 CRITICISM OF THE RULE OF LAW The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists, including I. Jennings, H. Laski and W.A. Robson. The main criticisms are summarized below. 1. The emergency of Administrative Law: With the increase of constitutional complexities,

the government departments have made many rules framed under various acts. This is known as

16 17

Supra note 5 Skarbek, David (March 2009). "F. A. Hayek's Influence on Nobel Prize Winners". Review of Austrian Economics 22 (1). 18 Hayek on Hayek: an autobiographical dialogue, By Friedrich August Hayek, Routledge, 1994, page 51 19 Bruce Caldwell, Hayek's Challenge: An Intellectual Biography of F. A. Hayek (Chicago: University of Chicago Press, 2004), p. 179.ISBN 0226091937

Administrative Law. There are also special tribunals for the settlement of professional disputes.20 At the time of Dicey (19thcentury Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative power in dayto-days work and for the purpose of performing the administrative work applies the discretionary power in most cases. Therefore, it is apparent that the Rule of Law is breached and the power of the government is far-reaching.21

2.

Economic Inequalities: In order to ensure legal equality Prof. Laski emphasizes the need

of economic equality. Punishment for the same offence varies because police enforcement is frequently partial. Therefore, from the standpoint of law, the word equality is meaningless, unless there is economic equality followed by social and constitutional equality.22

3.

The supremacy of the Legislature: The third principle of the Rule of Law is the

supremacy of common law. But, in fact the principal basis of the constitution of England is the supremacy of Parliament. The sovereignty of Parliament in Britain has not been established by the county. Although the fundamental Rights of a citizen are established upon the basis of conventional rules and the Court is the protector of those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify the existing rules.23 Therefore, is understood that Parliament is the fundamental basis of the Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea. This, however, does not apply to India because the constitution of India is written and there is a provision of fundamental rights in the constitution.

20

Lamb, Peter (April, 1999). "Harold Laski (1893-1950): Political Theorist of a World in Crisis". Review of International Studies (Cambridge University Press) 25 (2): 329342. 21 Venkat Iyer (2008). Citizens Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah, Nagpur: Lexis Nexis Butter Worths, Wadhwa. 22 Agnes Hurwitz & Reyko Huang (2009). Civil War and Rule of Law, USA: Lynne Rienner Publishers, Inc. 23 Hayek, F.A. (1994). The Road to Serfdom. Chicago: The University of Chicago Press. pp. 81. ISBN 0-226-320618.

APPLICATION OF DICEYS THEORIES TO INDIA

In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph.24 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 democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just.25 Rule of Law under the Constitution of India The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the Constitution, justice, liberty and equality are enshrined (embodied) in the preamble. The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Any law which is found in violation of any provision of the Constitution is declared invalid. Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part ill dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law (freedom of such and expression).

24

Shah JC. The Rule of law and the Indian Constitution, Citizens Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 139-200. 25 Mani, Rama. Exploring the rule of law in theory and practice, Civil War and Rule of Law. PP 21-45

Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State. Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted tinder the law in for cc at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, as the citizen (individual) can challenge under Article 32 of the Constitution. In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice.26 In Kesavanda Bharti vs. State of Kerala (1973)27 - The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of India28- The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Naraian, 29- Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister

26 27

Seervai H M (1993). Constitutional Law of India, Bombay: Tripathi Publishers. AIR 1973 SC 1461 28 AIR 1978 SC 597 29 Alit 1975 SC 2299

from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution. On 25th June, emergency was proclaimed under Article 359. Large number of persons was arrested under N11SA (Maintenance of Internal Security Act. 1971) without informing the grounds for arrest. Some of them filed petition in various high Courts for writ of Habeas Corpus. The petitioners contend that their detention is violation of Article 21. It was argued on the other side that the protection tinder Article 21 is not available (suspended) during the emergency. The Preliminary objection (not to file writ petitions during emergency) was rejected by various High Courts. 30 The question before Supreme Court was, whether there was any rule of law in India apart from Article 21 of the Constitution. The Supreme Court by majority held that there is no rule of law other than the constitutional rule of law. Article 21 is our rule of law. If it is suspended, there is not rule of law. Habeas Corpus case: A Black Mark on Rule of Law The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Courts' judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities The Supreme Court in A D M Jabalpur v. Shivkant Shukla31 by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief

30 31

. Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency. AIR 1976 SC 1207

Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati the lone dissenter was Justice H R Khanna Strong Comments were made against the majority judgments and the role of Justice H R Khanna was appreciated and applauded all over the world. Mr. V M Tarkunde, an eminent lawyer and editor of The Radical Humanist, characterized the majority judgments as Judicial Suicide. H M Servai, a leading Commentator on Constitutional Law and former Advocate General of Bombay wrote: The Four judgments delivered in the darkest hour of Indias history independence, and they made that darkness completeOrdinary men and women could understand Satan saying, evil be thou my good, but they were bewildered and perplexed to be told by four learned judges of the Supreme Court that in substance the founding fathers had written into the emergency provisions of our constitution lawlessness be thou our law. CONCLUSION Today in India, the strange phenomenon and paradox is that while on ideological plain democracy is supposed to strengthen the rule of law and the administration of criminal justice, in actual practice, the electoral process which is an integral part of democracy is undermining the rule of law and due administration of criminal justice. This must be put to an end. The traditional concept in all civilized liberal nations is that democracy and rule of law are close allies of each other. It has to be the effort of all well-meaning persons to ensure that their kinship is not weakened and that each of them continues to lend strength to the other. The concept of rule of law does not merely mean formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression Despite its inconsistencies, its crudities, its delays and its weaknesses, Rule of Law still embodies so much of the results of that disposition as we can collectively impose. Without it one cannot live; only with it one can insure the future which by right is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. Man

may be a little lower than the angels, he has not yet shaken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, what is required is the Rule of Law