Law and You > Administrative Law > The Doctrine of Rule of Law
Rule of Law essentially means that the ‘law’ should rule, rather than ‘men’. The origin of the Rule of Law can be traced all the way back to the Greek philosophers, Plato and Aristotle. It developed through a series of historical developments ranging from the Magna Carta, the ascendancy of parliamentary supremacy in England, the evolution of common law, the conceptualization and popularity of the social contract theories, the adoption of the American Constitution, the French revolution and the advent of liberalism. Hobbes, Locke, Rousseau, Montesquieu have had their say on the Rule of Law.
The formal origin of the word ‘Rule of Law’ is attributed to Sir. Edward Coke, and is derived from French phase ‘la principe de legalite’ which means the principle of legality. Albert Venn Dicey’s work on the Rule of Law is the first major modern work on the subject. In his “An Introduction to the Study of the Law of the Constitution”, Dicey identified the rule or supremacy of the law as one of the features of the political institutions of England since the Norman conquest. Dicey identified three distinct but interrelated conceptions as forming the Rule of Law:
- The Supremacy of the law
- Equality before the law
- Predominance of Legal Spirit
Principle’s of Dicey’s Theory of ‘Rule of Law’:
The Supremacy of the Law:
The Supremacy of the law is the first principle of the concept of the rule of law. Dicey considered this principle, the central and most characteristic feature of common law. According to this concept the law rules over all people including the persons administering the law. The lawmakers need to give reasons that can be justified under the law while exercising their powers to make and administer the law. The rule of law requires both citizens and governments to be subject to known and standing laws.
Dicey firmly believed that if any discretion is given to an administrative authority, freedom is in danger and this can be fatal to the supremacy of law. According to him, an Englishman is ruled by the law – and only by the law. He can be punished only for the breach of the law, and for nothing else.
According to Dicey, there must be absence of wide discretionary powers on the rulers so that they cannot make their own laws but must be governed according to the established laws. He further added “whenever there is a discretion, there is a room for arbitrariness and that, in a republic, no less than under a monarchy, discretionary authority on the part of government must mean insecurity for legal freedom on the part of the subjects.”
According the principle of supremacy of law, no man can be arrested, detained, punished, or made to suffer in body or property except by the due process of law and for a breach of a law proved in the ordinarily legal manner in the ordinary courts of land. Thus at all times, the government is subject to the law and not that the law is subject to the government and its whims.
The object of this principle can be achieved by
- asserting the law supremacy over executive power and people actions
- making sure that every citizen understands the necessity and desirability of observing the law.
- All concerned should be made to understand that without this there cannot be normal development of the society.
- An effective court system should be established.
Equality Before the Law:
Equality before law is the second principle of the concept of the rule of law. It seeks to ensure that the law is administered and enforced in a just manner. 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.
According to Dicey equality before law means that all classes of persons are subject to the ordinary law of the land administered by the ordinary law courts. Thus the law cannot discriminate between people on the basis of gender, social position, race, caste, etc. Dicey criticized French legal system of Droit Administratif as there were separate tribunals for deciding the cases of state officials and citizens separately. According to him all persons, whether private individuals or government officers, should be subject to the same law and be answerable to the same set of courts.
Predominance of the Legal Spirit:
Predominance of legal spirit is the third principle of the concept of the rule of law. He was of opinion that, the law courts should be the guarantors and protectors of the liberty of citizens. Dicey’s 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. He felt that the fundamental rights are better protected by courts than by declaration of such rights in a document, such as the Constitution. He pointed out that the rights not guaranteed by law courts but present in the Constitution, could be curtailed, ignored, or tempered upon by the executive. During emergency period in 1975 and the decision of the Supreme Court in the Habeas Corpus Case remind all Indians that constitutional guarantees make little sense in the absence of a strong fearless independent judiciary.
This principle pushes for an independent judiciary in a democratic set up.
Merits and Demerits of Dicey’s Theory:
Merits of Dicey’s Theory:
- It helps in defining the limits to the power of administrative authorities and keep check on them.
- It plays a major role in the growth and the recognition of the administrative law.
- It acts as a scale for the test of administrative action.
Demerits of Dicey’s Theory:
- Dicey’s theory was not fully accepted during Dicey’s time. Some tribunals were set up during his period itself.
- He placed discretionary power and arbitrary power in the same category. He failed to distinguish between discretionary and arbitrary power. In modern concept of welfare state, the discretionary power is effectively used by administrative authorities.
- He misunderstood the concept of Droit administratif which was actually successful in France. Actually such system was giving more protection to the French citizens.
- He over emphasized on judiciary than the constitution. Indian constitution and strong independent judiciary in India have proved that basic rights and liberties of citizens of a country can be safeguarded.
Application of Doctrine of Rule of Law:
In England:
In Wilkes v. Wood, 1763 19 St Tr 1153 case, the plaintiff sought damages after his property was entered by force on behalf of the Secretary of State. The Court awarded damages for trespass to the plaintiff.
In Enrick v. Carrington, 1765 19 St Tr 1030 case, the defendant and three other named individuals entered a property belonging to the a publisher (plaintiff) and ransacked it. The defendants claimed that they were lawfully entitled to enter the property under a warrant from the Secretary of State. The Court held that the defendants were trespassing on the claimant’s land and awarded damages to the plaintiff for the trespass.
In India:
In Chief Settlement Commissioner, Punjab v. Om Prakash, AIR 1969 SC 33 case, In this case, the Supreme Court observed: “In our constitutional system, the central and most characteristic feature is the concept of rule of law.”
In ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 case also known as Habeas Corpus case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. This was in the context of suspension of enforcement of Articles 14, 21, and 22 during the proclamation of an emergency. The answer to the majority of the bench was in negative for the question of law. However, Justice H.R. Khanna dissented from the majority opinion and observed that: “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies”
In the case of Satvant Singh Sawhney v. D Ramarathanana, AIR 1967 SC 1836 case, the Supreme Court held that every executive action, if it operates to the prejudice of any person, must be supported by some legislative authority.
In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 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.
In Secretary, State of Karnataka v. Umadevi, (1992) 3 SCR 826 case, the Court said: “Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”
In Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil, AIR 1994 SC 678 case, the Court observed: “If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.”
In State of Bihar v. Sonawati Kumari, AIR 1961 SC 221 case, the Court observed that it is an integral part of Rule of law that all the authority within the State including executive government should be bound to obey the rules.
In Bachan Singh v. the State of Punjab, AIR 1980 SC 898 case popularly known as “Death Penalty Case” the court held that the rule of law is free from arbitrary action if anywhere any action is done with arbitrary power then it will be considered as the denial of the concept of Rule of Law.
In Som Raj v. State of Haryana, AIR 1990 SC 1176 case, the Court held that absence of arbitrary power is an absolute motive of the principle of rule of law upon which directly the whole Constitution is dependent.
Conclusion:
Rule of law as established by Dicey requires that every action of the administration must be backed and done in accordance with the law. 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 judiciary becomes an important pillar to the rule of law. The government under the guideline of Rule of law make to rule or conditions that do not intercept with any individual dignity.