RULE OF LAW

(a) Introduction
One of the basic principles of the English Constitution is the Rule of Law. This
doctrine is accepted in the Constitution of U.S.A. and also in the Constitution of India.
The entire basis of Administrative Law is the doctrine of the rule of law. Sir Edward
Coke, Chief Justice in James I's reign was the originator of this concept. In a battle
against the King, he maintained successfully that the King should be under God and
the Law, and he established the Supremacy of the Law against the Executive. Dicey
developed this theory of Coke in his classic work "The Law and the Constitution'
published in the year 1885.

(b) Meaning
According to Dicey, the rule of law is one of the fundamental principles of the English
Legal System. In the aforesaid book, he attributed the following three meanings to the
said doctrine:
(i) Supremacy of Law
Dicey stated that the Rule of Law means the absolute supremacy of regular law as
opposed to arbitrariness or wide discretionary powers of the government. He
emphasized that “a man may be punished for a breach of law, but can be punished for
nothing else.” According to Wade, “the rule of law requires that the Government
should be subject to the law, rather than the law subject to the Government.”
Thus, no person can be lawfully arrested, punished, or deprived of liberty or property
except by due process of law and through the ordinary courts. Dicey described this
principle as “the central and most characteristic feature” of Common Law.
(ii) Equality before Law
Dicey’s second principle emphasised equality before the law, meaning that all persons
are equally subject to the ordinary law of the land and the jurisdiction of the ordinary
courts. He declared: “With us every official from the Prime Minister down to a
Constable or a Collector of Taxes is under the same responsibility of every act done
without legal justification as any other citizen.”
He criticised the French system of droit administratif, where special tribunals existed
for state officials, as a negation of equality. According to him, “such transference of
authority saps the foundation of the rule of law which has been for generations a
leading feature of the English Constitution.” Supporting this view, Lord Denning
observed: “Our English law does not allow a public officer to shelter behind a droit
administratif.”
(iii) Predominance of Legal Spirit (Judge-made Constitution)
Dicey’s third principle highlighted that in England, fundamental rights like liberty,
freedom from arrest, and freedom of assembly are not granted by a written
constitution but are outcomes of judicial decisions. Thus, the judiciary plays a crucial
role as guarantor of liberty. He said: “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.”
Dicey explained further: “There is in the English Constitution an absence of those
declarations or definitions of rights so dear to foreign constitutionalists. Our
Constitution, in short, is a Judge-made Constitution and it bears on its face all the
features, good and bad, of a Judge-made law.” He stressed that inclusion of rights in a
Constitution is meaningless unless courts provide effective remedies. As he rightly
stated: “Habeas Corpus Acts declare no principle and define no rights, but they are for
practical purposes worth a hundred constitutional articles guaranteeing individual
liberty.”
( c ) Application of the Doctrine
In England, the Rule of Law was practically enforced through judicial decisions. For
instance, in Wilkes v. Wood, wrongful arrest by the police gave rise to damages for
trespass, even though the act was supported by a minister’s order. Similarly, in Entick
v. Carrington, £300 damages were awarded against the King’s messengers for illegal
search and seizure. Thus, government officials were liable just like private individuals
when they acted beyond legal authority.
(d) Merits of Dicey’s Rule of Law
Dicey’s theory has significant merits. It effectively restricted administrative authorities
within legal limits and became a touchstone for testing administrative actions. Almost
all legal systems accepted it as a safeguard of democracy.
 The first principle (Supremacy of Law) establishes that the government must
be subject to law, not vice versa.
 The second principle (Equality before Law) upholds the democratic maxim
that “However high you may be, Law is above you” and “All are equal before
the law.”
 The third principle rightly stressed that fundamental rights are secure only
when enforced by independent courts, not merely by constitutional
declarations. This was evident during the Emergency of 1975 in India, where
rights were curtailed, proving Dicey correct that without a strong judiciary,
even a written Constitution is meaningless.
(e) Pitfalls of Dicey’s Rule of Law
Though Dicey’s Rule of Law was widely accepted as a constitutional safeguard, it also
had limitations. The rules enunciated by him were the result of ‘political struggle’
rather than ‘logical deductions from a Rule of Law’.
The first rule (Supremacy of Law) was criticised because Dicey equated absence of
arbitrary powers with the absence of discretionary powers. He believed that “wherever
there is discretion, there is room for arbitrariness.” However, this was inaccurate as
arbitrary power is inconsistent with the Rule of Law, but discretionary power is not, if
exercised properly. No modern welfare state can function effectively without
discretionary powers. David observed, “where the law ends, discretion begins”.
Discretion may result in either justice or injustice, but it is impossible to eliminate all
discretionary powers from governance, since “All Governments are of Laws and of
Men.”
The second rule (Equality before Law) was also flawed. Dicey misunderstood the
French system of droit administratif. He assumed that French administrative courts
granted officials special rights and privileges against private citizens. In reality, the
French Conseil d’Etat was a true judicial body which effectively checked
administrative abuse. Even in England, complete equality before law did not exist,
since administrative tribunals operated under special laws, and the Crown enjoyed
immunity under the maxim “The King can do no wrong.” Thus, equality in the strict
sense was not present even in Dicey’s own system.

(f) Importance of Rule of Law

In modern times, Dicey’s doctrine has come to be associated with the rights of
citizens. As Wade and Phillips rightly pointed out, it is accepted in almost all
democratic countries as a safeguard against oppressive, capricious, and arbitrary
powers of the administration. The International Commission of Jurists in its Delhi
Declaration of 1959 accepted the idea of the Rule of Law as a modern form of the law
of nature. Thus, the principle continues to hold immense significance in democratic
governance.

(g) Droit Administratif

(i) Meaning
The French legal system of droit administratif provides two sets of laws and two
separate courts: ordinary civil courts for disputes between private individuals, and
administrative courts for disputes between citizens and the State. Administrative
officials are not subject to ordinary civil courts; instead, special tribunals decide such
cases. Though its roots are old, the system was systematically implemented by
Napoleon in the 18th century.
(ii) Comments
Contrary to Dicey’s criticism, the French system provided quicker, cheaper, and often
better protection against administrative excesses than the English Common Law. Once
the illusion that administrative courts were inevitably biased is set aside, it becomes
clear that “they hold the keys to some problems which are insoluble under English
Law.”
Dicey misunderstood the French system, assuming it gave government officials
privileges over citizens, leading to injustice. In reality, the Conseil d’Etat functioned
as a model judicial body with impartial judges. Actual study of droit administratif has
shown that “no single institution has done so much for the protection of private
citizens against the excesses of administration as has been done by Conseil d’Etat.”
(iii) Concrete cases
In France, the Conseil d’État (administrative courts) adopts a pragmatic approach,
often holding the State liable in circumstances where English courts would not. For
instance,
(a) if an employee in a government factory is injured by an explosion, French courts
place liability on the State, unlike English courts which require proof of negligence.
(b) A passer-by injured while chasing a thief was compensated by the State in France,
and even public servants like a Rector wrongly removed from duties received
protection which English law denies under the “Crown’s pleasure” rule.
(c) In the monopoly of matches case, where a factory was wrongly closed under the
guise of health improvement to avoid compensation, the Conseil held the Minister
guilty of abuse of power and awarded damages, though ordinary courts could not have
done so.
(d) In the gas supply case, when wartime inflation made the agreed coal rates
unworkable, the Conseil revised the rates to prevent liquidation in the public interest,
a step a common law court would not take.
(e) In the Barel case (1954), candidates excluded from civil service exams without
recorded reasons were granted relief, showing judicial control over arbitrary action
earlier than English courts (1968).
(f) In the Fortune case, despite the government’s plea of “Act of State” and refusal to
disclose documents, the Conseil compelled production of confidential files, reviewed
them, and quashed the order—something unimaginable under English law. (
g) The Conseil rejected the English principle in Liversidge v. Anderson, condemning
the doctrine of subjective satisfaction in detention cases as incompatible with the rule
of law in any civilized country.
(h) Finally, applying the doctrine of legitimate expectation, it held that
administration must not adversely affect innocent persons by sudden, unexpected rule
changes unless required by public interest, and must give advance notice to those
affected.
(h) Modern Concept of Rule of Law
Dicey’s theory of Rule of Law, though revolutionary in 1885, cannot be accepted in
totality today. Administrative authorities already existed even during his time. Davis
identified seven modern meanings of Rule of Law: (1) Law and order, (2) Fixed
rules, (3) Elimination of discretion, (4) Due process/fairness, (5) Natural justice,
(6) Judicial preference over executive power, (7) Judicial review of administrative
action.

(i) Rule of Law under the Constitution of India

The Indian Constitution adopts Dicey’s Rule of Law, ensuring justice, liberty, and
equality through the Preamble and Fundamental Rights in Part III. The Constitution is
supreme and binds the Legislature, Executive, and Judiciary. Courts have the power of
judicial review to strike down unconstitutional laws or arbitrary executive actions.
Under Article 13, any law inconsistent with Fundamental Rights is void. Unlike the
English maxim “The King can do no wrong,” in India the Government and officials
can be sued in ordinary courts. Articles 14 and 16 guarantee equality before law and
equal protection, and the Rule of Law is treated as part of the Constitution’s basic
structure.
Although the Constitution guarantees rights, administrative authorities exercise vast
powers through delegated legislation and quasi-judicial functions in industries,
commerce, education, transport, and social welfare. Justice Ramaswamy noted that
these powers extend into social, economic, and political life. Liberty, therefore, is
vulnerable not only to executive actions but also to parliamentary laws, as seen in the
Preventive Detention Act, MISA (1971), and NSA (1980). As Harold Laski rightly
observed, liberty survives only with “eternal vigilance,” not blind reliance on law
alone.
The Supreme Court in Chief Settlement Commr., Punjab v. Om Parkash emphasized
that the key feature of the Constitution is Rule of Law. This means courts can test all
administrative actions for legality, and any action failing this test will be set aside. The
Court rejected the concept of a “Dual State,” where government actions enjoy
immunity, holding that such immunity is foreign to Indian constitutional philosophy.
Habeas Corpus Case (ADM Jabalpur v. Shivakant Shukla)
During the Emergency of 1975, fundamental freedoms under Articles 14, 19, 21, and
22 were suspended, and many leaders were detained under MISA without reasons.
The key issue before the Supreme Court was whether Rule of Law existed
independently of Article 21. The majority (Ray, Beg, Chandrachud, Bhagwati JJ.) held
that no such independent principle existed, and that Rule of Law meant only the
constitutional rule of law. According to them, Article 21 was the sole source of
protection for life and liberty, and once suspended, no independent right remained.
Justice Khanna’s Dissent
Justice H.R. Khanna, in his famous dissent, held that Rule of Law is a fundamental
principle of all civilized societies and is not dependent solely on Article 21. He stated
that the sanctity of life and liberty existed even before the Constitution, and no person
can be deprived of these without authority of law. He warned that a narrow view could
even justify mass murders under regimes like the Nazis. Quoting English law’s
rejection of slavery, he proudly declared that India too must never allow the eclipse of
Rule of Law.
Aftermath
The majority judgment was widely criticized as contrary to constitutional spirit, while
Justice Khanna’s view is now regarded as correct. The 44th Constitutional
Amendment later ensured that even during an Emergency, the right to life and liberty
cannot be suspended. This firmly established that Rule of Law is an inherent,
inviolable principle of the Indian Constitution.

Conclusion
The Rule of Law is the cornerstone of the Indian Constitution and forms part of its
basic structure. It ensures that no person, including the Government, is above the law,
and that equality, fairness, and accountability prevail in governance. While wide
administrative and legislative powers exist, they are subject to judicial review,
preventing arbitrariness and protecting citizens’ rights. The experience of the
Emergency and the Habeas Corpus case highlighted the dangers of undermining this
principle and reaffirmed that liberty depends on constant vigilance. Today, with
constitutional safeguards like the 44th Amendment, the Rule of Law stands as a
fundamental guarantee of justice, liberty, and equality in India.