RULE OF LAW

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. The Constitution of India intended for India to be a country
governed by the rule of law. It provides that the constitution shall be the supreme power in the land and
the legislative and the executive derive their authority from the constitution. The King is not the law but
the law is king. It means 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. Rule of Law plays an important role in the democratic countries. It provides
protection to the people against the arbitrary action of the administrative authorities. The expression
‘rule of law’ has been derived from the French phrase ‘la Principle de legality’ i.e. a government based
on the principles of law. In simple words, the term ‘rule of law, indicates the state of affairs in a country
where, in main, the law rules. 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 applied by the State in the
administration of justice. It is impossible to get the supremacy of law without the rule of law.

Rule of law is an alive and dynamic concept. The concept of Rule of Law is that the state is governed, not
by the ruler or the nominated representatives of the people but by the law. Rule of law means the
principle of legality which refers to a government based on principle of law and not of men. In this sense
the concept of rule of law is opposed to arbitrary powers. The term of Rule of law is used in
contradistinction to rule of man and rule according to law. Even in the most autocratic forms of
government there is some law according to which the powers of the government are exercised but it
does not mean that there is Rule of law. Therefore, the Rule of law means that the law rules, which is
based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non
arbitrariness and is certain, regular and predictable, using the word law in the sense of „Jus‟ and „lex‟
both. In this sense, rule of law is an ideal. It is modern name for Natural law. In ancient times, man has
always appealed to something higher than which is his own creation. . In Jurisprudence, Romans called it
„jus natural.‟ Mediaevalists called it the „law of god‟. Hobbes, Locke, Rousseau called it a „social
contract‟ or natural law and the modern man calls it „Rule of law‟. Historical Background The concept of
rule of law is derived from a French maxim “LA PRINCIPE DE LEGALITE” .means government which must
be based on the principal of law not of human. This rule was originated first time by Edward coke. He
said, “The King should be under God and the Law” and he established the supremacy of the law against
the executive and that there is nothing higher than law. Further Prof. Dicey developed it in his lecture
which was delivered in Oxford University. He was a positivist and he wrote about the concept of rule of
law at the end of the golden Victorian era of laissez-faire in England. He was in favor that minimum
power should be given to the administrative officers. According to him, wherever there is discretion
there is room for arbitrariness. Rule of law is one of the basic principles of the English Constitution and
the doctrine is accepted in the Constitution of U.S.A and India as well. The concept of Rule of law is of
old origin and is an ancient ideal. It was discussed by ancient Greek philosophers such as Plato and
Aristotle around 350 BC. Plato wrote: “Where the law is subject to some other authority and has none of
its own, the collapse of the state, in my view, is not far off; but if law is the master of the government
and the government is its slave, then the situation is full of promise and men enjoy all the blessings that
the gods shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that
"law should govern and those in powers should be servants of the laws.” We know this concept as the
child of 19th century. But it is not true because, we can get also this concept in Roman law, Greek Law,
Britain, Manu Code and Muslim law so we can say this concept is not a child of 19th century but it was in
existence of ancient era. The entire basis of Administrative Law is the doctrine of the rule of law.
Analogous Provision The principal of rule of law has been accepted by all countries in different manners.
Rule of law is a method to control the administrative power, and determine norms for the Government
to get reality, transparency and reasonability. In this sense rule of law form a moral code for the use of
administrative powers in every nation. Subsidiary features of rule of law can be deferent at a time in
various countries but main features are same. Main features of rule of law are universal e.g equality,
accountability and freedom. In modern time it was known as universal law which was ruled all over the
world. So we can say rule of law is applicable in all countries. England The principal of Rule of law has an
important place because there is no written constitution. In England, Constitution is based on the
conventions. If we look for the history of England we will get that there was a long controversy between
Parliament and Executive. In 17th century Parliament acquired the supremacy on the executive. This
supremacy was known as rule of law. In 1885 Dicey defined rule of law with a legal view. He dislikes
administrative law. He established this principle against French droit administrative.

Dicey‟s concept of Rule of Law contains three principles:

1-Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is
punishable except for a distinct breach of law established in an ordinary legal manner before ordinary
courts. The government cannot punish anyone merely by its own fiat. Persons in authority do not enjoy
wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room
for arbitrariness.

2- Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law and
jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his
property except for a breach of law established in the ordinary legal manner before the ordinary courts
of the land.

3- Predominance of legal spirit: The general principles of the British Constitution, especially the liberties
and the rights of the people must come from traditions and customs of the people and be recognized by
the courts in administration of justice from time to time.

Critical evolution of dicey’s concept

1- In first principle he opposed the discretion and arbitrary powers of administration. And said English
men are ruled by law and only law. But now these days it has become illogical. We cannot deny that
it is relevant because it has a great importance in preventive detention laws.
2- 2- In Second principle of rule of law is opposed a French concept droit administrative in which there
were separate administrative tribunals also for deciding cases between the official of the state and
the citizens. This system was existing in England also but Dicey denied it.
3- 3- He said all court must be followed same procedure for the crown and subject but at that time
crown has some privileges.
4- 4- He was confused and explains both are arbitrariness and discretion is same. Although both are
differ discretion means. Some potions are there but arbitrary means there is no option.
5- 5- The general principles of the British Constitution, especially the liabilities and the rights of the
people must come from traditions and customs of the people and be recognized by the courts in
administration of justice from time to time. But there are so many countries where a constitution is
the source of the rights and duties.

Rule of Law in Indian Perception Rule of law has played a great role to develop Indian democracy. When
Indian constitution was frame they had two options e.g. USA & England. They adopted some provisions
from USA and some from England. Our constitutional founder fathers adopted the Rule of Law from
England and incorporate so many provisions in Indian constitution. Indian Constitution is supreme no
one is above Indian constitution. All three organs follow constitution if any organ does something in the
violation of the constitution all such acts will be ultra vires. The preamble of The Constitution is also tells
about Rule of Law. Part- III and all fundamental Rights come under the Rule of Law, which are
enforceable by Law. If these are violated we can go to the Supreme Court and High court under Article
32 &226. The term „Law‟ includes all orders, rules, regulations, bylaws, notice and customs. It expects
that all these will be according to Constitutional provisions if they will against, under article-13 they will
be declare unconstitutional and void. In the Constitution of India guaranteed certain rights which can be
enforced by the courts. At this Juncture, we may consider the position prevailing in India as regards the
third principle of Dicey‟s doctrine of Rule of Law, i.e., predominant of legal spirit. Until this principle was
being considered in the context of interpreting the provisions of the Constitutions .

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 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 . The executive
and Legislative powers of the state and the union are required to be exercised according to the
provisions of the constitution. The government and public officials are not above law. Equality before
law as a postulate of Rule of Law has been accepted and adopted Under Article -14 of the Constitution.
The maxim “King can do no wrong” is not applicable in India. The Government and Public Authorities are
subject to the jurisdiction of the ordinary court of law and for similar wrongs are to be tried and
penalized similarly. They are subject to ordinary legal process. The doctrine of equality is accepted in
public service also. Suit for breach of contracts and torts committed by the public authorities can be filed
in the ordinary courts and damages recovered from the state government or the union government for
the Union Government for the Acts of their employees. The basic concept of rule of law is not a define
legal concept the courts would not declare any positive law to be invalid on the ground that it violet the
content rule of law. Supreme Court observed in Habeas corpus case, and attempt was made to challenge
the detention order‟s during emergency on the ground that were violated of the principal of the rule of
law as the obligation to act in the accordance with rule of law is the central feature of the our
constitutional system and is the basic feature of the constitution. The narrow issue before the Supreme
Court was whether there was any rule of law in India apart from Art. 21 of the Constitution. The
Majority of bench answered the issue in the negative. Justice Khanna however did not agree with the
majority view and gave a powerful dissenting Judgment. He observed “rule of law is anti-aphesis of
arbitrariness (it is accepted) in all civilized societies, it has come to be regarded as the mark of the free
society. It seeks to maintain a balance between the opposite notions of individual liberty and public
order. Even in absence of Art. 21 in the Constitution, the state have got no power to deprive a person of
his life or personal liberty without the authority of law. Rule of Law and Role of Indian Judiciary Rule of
law and judiciary review has a important place to develop a welfare state. Indian judiciary plays a good
role to maintain both rule of law and judicial review. In the case A.K.Kraipak V. Union of India, Supreme
Court held that the Constitution the India Embodies the modern concept of the rule with the
establishment of a judicial system which should able to work in the impartially and free from all
influence. The rule of law pervades over the entire field of the administration and every organ of the
state is regulated by the rule of law. The concept of this rule of law would lose its vitality if the
instrumentalities of the state are not charge with the duty of discharging there function in a fair and just
manner. In case of Keshvananda Bharti V. State of Kerla , the majority decision was, the rule of law is the
part of the basic structure of Indian Constitution it cannot be amended by the parliament .In the case of
Indra Nehru Gandhi V. Raj Narayan was a great discussion about rule of law. Justice Mathew observed
that according to majority decision of Keshvananda Bharti rule of law is the part of basic feature of
Indian Constitution apart from democracy. Rule of law prevent the arbitrariness of all government
officer‟s. There were so many provisions incorporate in our Constitution to informant of the rule of law.
Under Art. 14of our Constitution rule of law is explained. In the case of Supreme Court Advocates on
Record on Association V. Union of India, Supreme Court laid down that rule of law does not rule out
existence of discretionary power completely. The Supreme Court held that vesting of absolute power in
one individual is not warranted under the constitutional scheme. For the Rule of Law become realistic,
there has to be room for discretionary authority within the operation of the Rule of Law, even though it
has to be reduced to the minimum extent necessary for proper governance and within the areas of
discretionary authority, the existence of proper guidelines or norms of general application excludes any
arbitrary exercise of discretionary authority. New inclination of Rule of Law and Judicial Activism In the
Last decades Supreme Court interpreted the Rule of Law in a wider sense in respect of our Constitution.
The term personal liberty under Article-21 of our Constitution includes all liberties and the judiciary
while interpretation declared it as a part of Rule of Law. Justice Bhagwati stated that Rule of Law is
vested in the breath of our constitution and it is a basic principal of our Constitution7 . In the Case of
Veena seth v. State of Bihar, held that the reach of the Rule of Law extended to the poor and the down
trodden, the ignorant and illiterate who constitutes the large bulk of humanity in India. D.K.Basu v. State
of West Bangal9 , Supreme Court extended the meaning of Rule of Law to prisoners. The Doctrine of
Rule of Law Protects Human Rights everywhere and every place whether it is for prisoner or a person
under police custody. Bhim Singh V. State of Jammu & Kashmir. Supreme Court held that the Right of
personal liberty comes under the doctrine of Rule of Law and if it is violated by state, state must provide
compensation for it. Justice Bhagwati stated in the case of D. C. Badhwa V. State of Biharthe doctrine of
Rule of Law is the basic and essential feature of our Constitution. It means whenever state authorities
will perform their power they use these within the constitutional limits. If executive or any authority acts
anything in the violation of our Constitution then any person can challenge such acts before the Hon‟ble
high court or Supreme Court and it will be the Constitutional duty of that Court to consider it and
pronounce the judgment on the legality of such conducts. In the case of mandal commission12 the
Supreme Court has upheld that the national policy of reservation in favour of socially and educationally
backward classes but at the same time also declared for the requirement, identification and exclusion of
creamy layer for extension of the reach of Rule of Law to the disadvantaged section of people. Yusuf
khan v. Manohar Joshi, The Supreme Court has laid down the proposition that it is the duty of the state
to preserve and protect the law and the constitution and that it cannot permit any violent act which may
negate the rule of law. Therefore a new regime of Rule of law is created latest judicial decisions. By
which they focused on fair, just and reasonability of administrative functions. Its effect that everyone
has the Right of Compensation, protection of their rights and right against arbitrariness from
administration. All these have become the part and parcel of Rule of Law. These rules are the means of
social welfare for administration. Conclusion & Suggestion On a brief overview of the above discussion
we can say that Supremacy of Law Is the Aim, Rule of Law Is the Best Tool to Achieve This Aim. The Court
is also making efforts to link Rule of Law with Human Rights of the people. The court is evolving strategy
by which it can force the government not only submit to law but also create conditions where people
can develop capacities to enjoy their rights in proper and meaningful way. It is the responsibility of the
public administration for effective implementation of Rule of Law on constitutional commands which
effectuate fairly the objective standards laid down by law . Every government servant holding public
power as a trustee of the society and accountable for due effect national goals . Although all the merits
are unhurt in the concept of the Rule of Law, the only Negative aspects of the concept is that respect for
law degenerates into rigidity of legalism which is injurious to the nation . The Hon‟ble Supreme Court in
number of cases through its decision established Judicial Authority and developed the Principle of
Judicial Review which cannot be amended, curtailed or removed. Our Constitution adopted the three
principle of Rule of Law i.e. Equality before Law, Exclusion of Arbitrariness & Supremacy of judiciary. In
the modern era the discretionary powers is provided to the authorities for running the society but some
time these power are misused by the authorities which effects and destroys the basic principles of the
society. If some reasonable restriction, regulations and norms are created in exercise of such powers,
these powers will efficiently and effectively regulates the society. The Dicey concept “Rule of Law” is
adopted by our constitution, and this concept resulted into the success of our judicial system. In the
modern era the use of Discretionary power by the authorities is a need. The discretionary power is
against the Doctrine of Rule of Law. The balance between the two is to be made and this can be done
when the judiciary controls the misuse of discretionary power by the Administration. The rule of
harmonious Construction to remove the imbalance between “Rule of law” & “Discretionary Power”
should be applied.