RULE OF LAW

INTRODUCTION:

“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that are
blowing

-Caroline Kennedy

It is to be comprehended that the state is governed not by the ruler or the nominated
representatives of the people but by the law. The term ‘Rule of Law’ is nowhere defined in the
Indian Constitution but this term is often used by the Indian judiciary in their judgments. Rule of
law has been declared by the Supreme Court as one of the basic features of the Constitution so it
cannot be amended even by the constitutional amendment. Rule of law is seen as an integral part
of good governance. As per rule of law, it is required that the people should be governed by the
accepted rules rather than the decisions that are arbitrarily taken by the rulers.

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’
means the principle of legality.

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.

Rule of law has been defined by many scholars as the symbol of ultimate authority, which no
man can override.
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.

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 as they are
found in the bill of rights.

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. Rule of law mandates that no person shall be subjected to harsh,
uncivilized or discriminatory treatment even if the object is to protect and secure law and order.

ORIGIN OF THE RULE OF LAW:

The first proponents of the doctrine of the rule of law are believed to be Greek philosophers
including Aristotle, Plato, Cicero. For instance Plato in his book known as ‘Complete Works of
Plato’ is found to have written that the collapse of the state is not far where the law is made
subjective to the authorities but the states where the law is considered as supreme all the
blessings of the god falls on such state and it flourishes through all times.

The rule of law is an ancient ideal first posited by Aristotle, a Greek scholar, as a system of rules
inherent in the natural order.

In England, Rule of law began sometimes around 1215 when King John of England signed the
Magna Carta of 1215. The signing of Magna Carta indicated the consent of the Monarchy of
England to be under the law and the law to be supreme. The doctrine of rule of law in England
took a new look after the conflict between the parliament and monarchy or king aroused. In this
conflict the parliament and the monarchy were struggling to be supreme authority. This conflict
was resolved in favour of the parliament. After parliament became supreme over the monarchy it
started making the laws which controlled and limited power of the monarchy. Hence executive
organs in England became subjected to the law of the parliament and that was the beginning of
the rule of law in England.

In the United States of America (U.S.A.) the doctrine of rule of law was first introduced in 1776
by the constitutional lawyers known as Paine. He is of the view that America being a free
country considers Law as the king because in every country which is free law should be the king
and no one else.  

More ideas of Rule of law were further developed by the renowned English constitutional lawyer
by the name of Dicey.

In the modern sense, the most famous exposition of the concept of rule of law was given by Prof.
Albert Venn Dicey in his book ‘THE LAW OF THE CONSTITUTION’ in respect to the powers
which the government must exercise in accordance to the law. Rule of law consists of several
basic principles which law and policy makers, judges and law enforcement agencies should
consider while exercising authority in a democratic society. This means all duties, power and
functions of government, including its organs and authorities are done in accordance with the
law.
DICEY’S CONCEPT OF RULE OF LAW:

Dicey 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-

 Supremacy of Law;

 Equality before the Law; and

 Predominance of Legal spirit.

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.

SIGNIFICANCE OF RULE OF LAW:

 It reverses the tyranny or anarchy

 It puts legal barriers to governmental arbitrariness

 It provides safeguards for the protection of individuals 

 It gives freedom to the judiciary to control the executive who exceeds their jurisdiction

 Public welfare should be the dominant consideration