UNIT-2

Rule of law by A.V Dicey

Meaning of Rule of law.

The chief justice sir Edward Coke is said to be the originator of this principal. It was originated
with the object to exclude arbitrary authority of the Government (King) and to protect the
individuals from unlawful action of the Government (King). In a battle against the king ,he
succeeded in maintaining that King must be under God and the Law, and in this way he established
the supremacy of law over the executive. Later on this concept of Rule of Law was developed and
established by dicey.

“Rule of law” is derived from the French phrase la principal “la principle de legalite” Which
means the principle of legality , i.e a government based on principle of law and not of men. So ,
the expression “rule of law” explains a state of affairs in which everything must be done according
to law . Rule of law in this sense, is a concept opposed to arbitrary or tyrannical powers.

Dicey’ concept of Rule of Law

Albert Venn Dicey is one of the well known jurist of England and he has written a famous book
“ Law of the Constitution”. One should know the difference between administrative law and rule
of law. Dicey was against making different rules for a different class of people so he stood by
against this concept and promoted the idea of rule of law. Here the term is used “Droit
administrative” was introduced by Napoleon and in france , it was known as Droit Administratif.
France was having separate administrative court for dealing with the matter. According to this
action by the citizens against an official for a wrongful act committed in their official capacity will
be dealt by special court not by the ordinary courts of law. Droit administrative does not consist
of rules and law made by French parliament but it includes a rule which is developed by the judges
of the administrative court.

Dicey in his book “The Law of the constitution” attributed the following three meanings to rule of
Law :

(1) Supremacy of Law

➢ Supremacy of Law

This means “No man is punishable except for a Distinct breach of Law” established in the ordinary
legal matter before the ordinary court. The government or any high class authority cannot punish
any individual on the personal ground till the time an individual has committed an offence and if
the offence is committed then proper procedure and trail will be conducted.

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Dicey states that rule of law means there should be lacking of arbitratiness or wide discretionary
power. Dicey was of the view that all individuals whether a common man or government authority
are bound to obey the law and no man can be punished for any breach other than a breach
established in law.

➢ Equality before Law

This principal is based on well known maxim, “However High you may be, Law is above you,”
Even government authorities are duty bound to obey the same law and they have no special orders
to deal with their causes.

Dicey says that there must be equality before law or equal subjection of all classed to the
ordinary law of the land administered by the ordinary Courts. He criticized the French legal system
of “Droit Administratif in which there were separate administrative tribunals for deciding cases
between the officials of the state and the citizen. According to him , exemption of civil servants
from the jurisdiction of the ordinary Courts of law and providing them with the special tribunals
was the negation of equality. It also means that law should not discriminate against people on the
ground of race, gender , religion , creed ,social background and so forth. It should apply equally
or ordinary citizen and to government officials.

➢ predominance of legal spirit

This doctrine states the independence of the judiciary to enforce the spirit of rule of law. The
court of law is a significant institution that has commendably contributed to determining and
maintaining the rights of private persons and the general principles of the Constitution are the
result of these judicial decisions. Dicey contended that the constitution does not constitute to
be a source of the constitution rather judiciary is synonymous with it. Therefore, Dicey was
not satisfied to just write these rights in the constitution but that they should be enforceable in
a court of law and to achieve this, the judiciary should be impartial and independent.

Rights (e.g. right to personal liberty, freedom from arrest etc.) are the result of judicial decision
in particular cases which have actually arisen between the parties. The Constitution is not the
source but the consequence of the right of the individuals.

Criticism of Dicey’s Concept:

Professor A.V. Dicey’s theory which was so acceptable to the 19 th century individualism, has been
a subject of critical inquiry in later years. Several fallacies have been alleged by various
academicians and theorists in the finding and claims made by Dicey.

• Dicey misunderstood the concept of Droit administratif. According to him, the system was
designed to protect the officials but in certain respects , it was specifically effective in
controlling the adminstration than the common law system.

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 • In his law of the Constitution, Dicey did not refer to the prerogative writs of Mandamus,
prohibition, and certiorari by which superior courts exercised control over adminstrative
action and adjudication. These writs belong to public law and have nothing to do with
private law, and had he noticed those writs he could not have denied the existence of
adminstrative law in England.

• Dicey wrote in the hey-day of Laisse-faire and he dealt with the rights of individuals not
with the power of the adminstration.

• It is tempting to say that the welfare state has changed public law, and consequently
delegated legislation and the exercise of judicial functions by adminstrative bodies have
increased. But the true view is that Dicey’s Rule of law was founded on the seperation of
powers, fixed public attention on adminstrative law and delegated legislation. Dicey dealt
with individual liberty and critised adminstrative discretion. But he did not deal with the
adminstration as such, and he failed to distinguish between discretion given to public
officials by statute and the arbitrary discretion at one time claimed by the king.

• Dicey created a false opposition between ordinary law and special law and between
ordinary court and special tribunals when he says, firstly , that the rule of law required the
equal subjection of all classes to the ordinary law of the courts and secondly that the rule
of law was inconsistent with adminstrative law and administrative tribunals, which he
himself recognized that it may be necessary to create a body of persons for adjudicating
upon the offences or the errors of civil servants as such adjudication may be more effective
in enforcing official law and moreover mere presence of a well established law for all
would not serve the purpose.

Rule of law in India:

The concept of Rule of law had its roots in India from very beginning of India’s civilization. In
the ancient times the Rule of Dharma prevailed in the form of Dharma Shastras or Neeti Shastras.

Rule of law in its modern concept was again established in India after independece when in 1950
the constitution of India was made the supreme law of the land. The Rule of Law was placed on
the higher footing than ordinary legislation.

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.

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Any law that is made by the legislature has to be in confirmity with the constitution , failing which
it will be declared invalid, This is provided for under Article 13(1) of the Indian Constitution.

Article 21 provides a further check against arbitrary executive action by stating that no person shall
be deprived of his life or liberty except in accordance with the procedure established by law.

Further Article 14 ensures that all citizens are equal and that no person shall be discriminated on
the basis od Sex, religion, race or place of birth. The Hon’ble Supreme Court of India has further
strengthened this mechanism through its various judgments.

State of M.P V. Thakur Bharat Singh AIR 1967 SC 1170

In this case it was held by the Apex Court, that “ We have adopted under our Constitution not the
continental system but the British System under which the rule of law prevails”.

Our federal structure is founded on certain fundamental principles: these are :

➢ The Rule of law , which includes judicial review of arbitrary executive actions. 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 must,
if it is to operate to the prejudice of any person , be supported by some legislative authority.
➢ There is distribution of powers between the three organs of the state viz.., legislative,
executive and judicial, each organ having some check direct or indirect on the other.
➢ The Sovereignty of the people with limited Government authority i.e , the Government
must be conducted in accordance with the will of the majority of the people. The people
govern themselves through their representatives, whereas the official agencies of the
executive Government possess only such powers as have been conferred upon them by the
people.

Maneka Gandhi v. Union of India AIR 1978 SC 597

In this Case the court ensured that exercise of power in an arbitrary manner by the government
would not infringe the rights of the people .

A.K Kraipak v Union of India, AIR 1970 SC 150

In this Case the Supreme Court observed that “ Rule of law runs like a golden thread through every
provision of the Constitution and indisputably constitutes one of its basic features , which requires
that every organ of the state must act within the confines of powers conferred upon it by the
constitution and the law. The Rule of law pervades over the entire field of administration.

Kesavananda Bharati v. State of Kerala

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In this Case The Supreme Court held that the Rule of law is an essential part of the basic structure
of the constitution and as such cannot be amended by any act of parliament, thereby showing how
the law is superior to all other authority of men.