RULE OF LAW

RULE OF LAW
• RULE OF LAW means that the law rules, using
the word ‘law’ in the sense of both jus and lex.
• It is modern name of Natural justice.
• In its ideological sense, the concept of rule of
law represents an ethical code for law.
 Rule of Law: General

• Origin: The concept was originated by Sir Edward Coke, Chief Justice
during the reign of James I.

• Development: Expanded by A.V. Dicey in his 1885 book The Law and
the Constitution.

• Case Law: Entick v. Carrington (1558–1774) All ER Rep 41.

 Thomas Paine
• Thomas Paine in his pamphlet Common Sense
quoted, THE LAW IS KING. For as in absolute
governments the King is law, so in free
countries the law OUGHT to be King; and
there ought to be no other.
• The term Rule of Law is derived from the
French phrase la principe de legalite(the
principle of legality) which refers to a
government based on principles of law and
not of men.
• It also means that power should be
exercised within the statutory ambit and
purported exercise of it would not just be
ultravires, but in a true sense of term
arbitrary.
• According to A V Dicey whenever there is
discretion there is room for arbitrariness.
• Even in the most autocratic form of ruling there is
a legal framework according to which the
government works. In a monarch this concept
developed to control the power of arbitrary
powers of the monarchs who claims to have divine
powers.
• Same way in a democracy it ensures that the
holders of public policy must be able to justify
publicly that the exercise of powers is socially just
and according to law.
• Rule of law is the present day modernized
name for natural law. In jurisprudence, it
was known as ‘jus naturale’ by the Romans,
‘law of god’ by the medievalists. Coming
ahead in time, Rousseau, Hobbes and Locke
called it ‘social contract’ or ‘natural law’.

• The modern man refers to it as ‘the rule of

law’
Droit Administratif (French Legal System)

• Two types of laws and court systems:

– Ordinary courts deal with civil disputes between
subjects.
– Administrative courts (e.g., Conseil d’État) deal
with disputes between the state and its subjects.
 Dicey’s Concept Of Rule Of Law
• 1. Supremacy Of Law
• It implies the absolute power of law, dominance and
the supremacy of it. It is opposed to the influence of
arbitrary power and wide discretionary power.
• In Dicey’s words, “wherever there is discretion, there
is room for arbitrariness and that in a republic no less
than under a monarchy discretionary authority on
the part of the government must mean insecurity for
legal freedom on the part of its subjects.
 2. Equality Before The Law:
• The law administered should be the ordinary rule of
law applicable to all the people equally irrespective
of caste and creed or religion. This doctrine has been
also included in the Indian Constitution in the form
of Article 14.
• The excerpts of which can also be seen in Article 15.
Dicey was of the view that, any encroachment on the
jurisdiction of the courts and any restrictions on the
subject’s unimpeded access to them are bound to
jeopardize his rights.
 3. Predominance Of Legal Spirit:
• The Constitution is not the source but the
consequence of the rights of the individuals.
Here, Dicey emphasized on the role of the
courts. Without an authority to protect and
enforce the rights conferred upon citizen,
their inclusion in a document etc. is of little
value. Mere inclusion is not authoritative and
its provisions might be abridged, trampled or
overlooked.
Criticism of Dicey’s Understanding
• Never fully accepted even in England.
• Ignored doctrines like sovereign immunity ("King
can do no wrong").
• Overlooked administrative tribunals.
• Failed to distinguish arbitrary power vs
discretionary power.
• Misunderstood droit administratif.
• Nonetheless, Dicey offered a universal ideological
content.
 Rule of Law in India
• Preamble embodies Justice, Liberty, Equality.
• Fundamental Rights are enforceable.
• Supremacy of Constitution.
• Judicial Review embedded (Art. 13).
• Article 14 ensures equality before law and supremacy of
law.
• Article 300 and others uphold legal accountability.
• RTI (Right to Information) strengthens transparency and
accountability.
Adoption Of Rule Of Law In India
And Supreme Court Judgments:
• Fundamental rights enshrined in part III of the
constitution is a restriction on the law making
power of the Indian Parliament. It includes
freedom of speech, expression, association,
movement, residence, property, profession and
personal liberty.
• In its broader sense the Constitution itself
prescribes the basic legal system of the country.
To guarantee and promote fundamental rights
and freedoms of the citizens and the respect for
the principles of the democratic State based on
rule of law.
The popular habeas corpus case, ADM Jabalpur v. Shivakant
Shukla is one of the most important cases when it comes to
rule of law. In this case, the question before the court was
‘whether there was any rule of law in India apart from Article
21’. This was in context of suspension of enforcement of
Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of 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…”
• The secondary meaning of rule of law is that the
government should be conducted within a
framework of recognized rules and principles
which restrict discretionary powers. The Supreme
Court observed in Som Raj v. State of Haryana that
the absence of arbitrary power is the primary
postulate of Rule of Law upon which the whole
constitutional edifice is dependant. Discretion
being exercised without any rule is a concept which
is antithesis of the concept.
• The third meaning of rule of law highlights the
independence of the judiciary and the
supremacy of courts.

• It is rightly reiterated by the Supreme Court in

the case Union of India v. Raghubir Singh that it
is not a matter of doubt that a considerable
degree that governs the lives of the people and
regulates the State functions flows from the
decision of the superior courts.
• In Chief settlement Commr; Punjab v. Om Prakash
, it was observed by the supreme court that, “In
our constitutional system, the central and most
characteristic feature is the concept of 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
matter into notice.”
• In Kesavanda Bharti vs. State of Kerala (1973) - The
Supreme Court enunciated the rule of law as one of the
most important aspects of the doctrine of basic structure.

• In Menaka Gandhi vs. Union of India - The Supreme

Court declared that Article 14 strikes against arbitrariness.

• In Indira Gandhi Nehru vs. Raj Narain- Article 329-A was

inserted in the Constitution under 39th amendment,
which provided certain immunities to the election of
office of Prime Minister from judicial review.
The Supreme Court declared Article 329-A as invalid since
it abridges the basic structure of the Constitution.
Vivek Narayan Sharma v. Union of India (2017) 1 SCC 388

•Issue: Validity of 2016 Demonetisation Scheme.

•Majority: Court should not interfere in economic
policy—domain of the executive.
•Dissent (Justice Nagarathna): Judicial review is valid as it
concerns interpretation of RBI Act.

Binoy Viswam v. Union of India [2017] 4 MLJ 703

Issue:
Does Section 139AA of Income Tax Act (linking PAN to
Aadhaar) violate Rule of Law?
Held: It does not violate Rule of Law or right to privacy.
 Significance of Rule of Law
• Thinkers and Theorists:
• John Locke: "Wherever law ends, tyranny
begins."
• John Finnis: Rule of law = legal system in
good shape.
 Lord Bingham’s Eight Sub-Rules:
• Laws must be accessible, intelligible, clear, and predictable.

• Legal rights and liabilities must be decided by application of law, not discretion.

• Equality before the law, unless objective justification exists.

• Protection of fundamental human rights.

• Access to justice without prohibitive cost or delay.

• Public powers must be exercised reasonably, in good faith, within limits.

• Fair adjudicative procedures must be provided by the state.

• State must comply with international law, whether by treaty or custom.