ON
“RULE OF LAW”
(SESSION: 2018-19)
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ACKNOWLEDGEMENT
I would like to take this opportunity to express my profound gratitude and deepest regards to y
professor of Administrative Law, Dr. Jasneet Walia, for reposing immense faith in me while
assigning me this topic, and for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by her shall carry us
a long way in the journey of our life.
I also take this opportunity to express a deep sense of gratitude to the librarian staff, for their
cordial support, valuable information and guidance, which helped us in completing this task.
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TABLE OF CONTENTS
INTRODUCTION ............................................................................................................................................. 4
MEANING ...................................................................................................................................................... 4
RULE OF LAW VIS-À-VIS ADMINISTRATIVE LAW ........................................................................................... 6
DICEY’S PRINCIPLES ....................................................................................................................................... 7
1. SUPREMACY OF LAW: .......................................................................................................................... 7
2. EQUALITY BEFORE LAW........................................................................................................................ 8
3. PREDOMINANCE OF LEGAL SPIRIT ....................................................................................................... 9
CRITICISM ............................................................................................................................................... 10
CONCLUSION .......................................................................................................................................... 11
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INTRODUCTION
The concept of “Rule of Law” is the building block on which the modern democratic society is
founded. For the successful functioning of the polity it is imperative that there is enforcement of
law and of all contracts based on law. Laws are made for the welfare of the people to maintain
harmony between the conflicting forces in society. One of the prime objects of making laws is to
maintain law and order in society and develop a peaceful environment for the progress of the
people. The concept of Rule of Law plays an important role in this process. Rule of law remains
a constant theme in development policy and practice, and in recent policy discourse and
international commitments it has gained new levels of prominence. Of course, rule of law and
justice are concepts that have been bandied around for many decades, gaining ground at different
times, for different reasons, and following (more or less) shifting normative orientations and
goals across a range of development policy agendas.
The term ‘rule of law’ means the principles of legality which refers to a government based on
principles of law and not of men. In this sense, the concept of rule of law is opposed to arbitrary
powers.
Rule of law is one of the basic principles of the English Constitution. This doctrine has been
enshrined in the Constitution of U.S.A. and 9n the Constitution of India as well. The entire basis
of administrative law is the concept of rule of law. Sir Edward Coke, the Chief Justice in James
I’s reign is said to be the originator of this great principle. In a battle against the King, he
succeeded in maintaining that the King must be under the God and the law and thus vindicated
the supremacy of law against the executive. Dicey developed this doctrine of Coke in his classic
book, ‘The Law and the Constitution’, published in the year 1885.
MEANING
The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the
principle of legality) which refers to a government based on principles of law and not of men. In
a broader sense, Rule of Law means that Law is supreme and is above every individual. No
individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In
a narrower sense, the rule of law implies that government authority may only be exercised in
accordance with the written laws, which were adopted through an established procedure. The
principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government
authorities. The rule of law has been described as a “rare and protean principle of our political
tradition”.
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The rule of law centrally comprises “the values of regularity and restraint, embodied in the
slogan of “‘a government of laws, not men’”. It does not provide anything about how the laws
are to be made, or anything specific like the Fundamental Rights or the Directive principles or
equality etc. but it provides for two basic concepts, i.e., Law must be obeyed by the people and
that the law must be made in such a way that it is able to guide the behaviour of its subjects.
The expression ‘rule of law’ was given prominence by Dicey. According to him, the rule of law
is one of the cardinal principles of the English Legal System. He attributed the following three
meanings to the doctrine :
Supremacy of law.
Equality before law, and
Predominance of legal spirit.
CONCEPT
Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This
concept was developed by the International Commission of Jurists. Known as Delhi Declaration,
1959 which was latter on confirmed at Logos in 1961. According to this formulation-
“The rule of law implies that the functions of the government in a free society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld. This
dignity requires not only the recognition of certain civil or political rights but also creation of
certain political, social, economic, educational and cultural conditions which are essential to the
full development of his personality”.
The modern concept of rule of law is fairly wide. Davis gives seven principal meaning of the
term, ‘Rule of Law’ –
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democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor
Jennings says –
“In proper sense rule of law implies a democratic system, a constitutional government where
criticism of the government is not only permissible but also a positive merit and where parties
based on competing politics or interests are not only allowed but encouraged. Where this exist
the other consequences of rule of law must follow.”
1
Harry v Jones, - The Rule of Law and the Welfare State, 58 Col. LR 143 (1958).
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DICEY’S PRINCIPLES
In Modern times, the rule of law was propounded by the Albert Dicey, a British jurist and
Philosopher. He gave following three postulates of rule of law: 1. Everyone is equal before the
law. 2. Sanctions have to be backed by law. 3. Courts are the ultimate body and supremacy of
court is ambivalent in civilized society.2 As per Prof. A.V.Dicey, “the rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness or even of wide discretionary authority on the
part of Government.” ( The Law of Government)
A V Dicey in his book The Law of the Constitution (1885) has given the following three
implications of the doctrine of rule of law.3
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve.
Accordingly - "The rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an individual is
upheld. This dignity requires not only the recognition of certain civil or political rights but also
creation of certain political, social, economic, educational and cultural conditions which are
essential to the full development of his personality".4
A.V.DICEY’S CONCEPT
1. Supremacy of Law
1. SUPREMACY OF LAW:
Expounding the first postulate, dicey states that rule of law means the absolute power or
supremacy or predominance of regular law as opposed to the influence of arbitrary power or
wide discretionary power. It excludes the existence of arbitrariness, of prerogative power or wide
discretionary authority on the part of government. He asserted that Englishmen were ruled by
law, and by the law, and by the law alone; he denied that in England the government was based
2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506 seen on 14.004.2019
3
https://iasscore.in/national-issues/concept-of-rule-of-law
4
Supra note 1
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on exercise by persons in authority of wide arbitrary, or discretionary powers. dicey5 claimed,
‘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 government must mean insecurity for
legal freedom on the part of its subjects”,6 According wade7 also says, ‘the rule of law requires
that the government should be subject to the law, rather than the law subject to the government.”8
'Supremacy of Law' is the central and most characteristic feature of Common Law. Law is the
absolute supreme and predominant as opposed to influence of arbitrary power or discretionary
power. English men are ruled by the Rule of Law and law alone. A man can be punished by
rule of law, and by nothing else.
The rule of law requires both citizens and governments to be subject to known and standing
laws. The supremacy of law also requires generality in the law. This principle is a further
development of the principle of equality before the law. Laws should not be made in respect of
particular persons. As Dicey postulated, the rule of law presupposes the absence of wide
discretionary authority in the rulers, so that they cannot make their own laws but must govern
according to the established laws. Those laws ought not to be too easily changeable. Stable laws
are a prerequisite of the certainty and confidence which form an essential part of individual
freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be
achieved if they are framed in too detailed a manner.9
Explaining the second postulate of the doctrine of rule of law, dicey says that there must be
equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts. In England he maintained, all persons were subject to
one and the same law, and there were no extraordinary tribunals or special courts for officers of
the government and other authorities. According to him courts are superior throughout the state.
In this connection he criticized the French legal system of droit administratif in which there were
separate administrative tribunals also for deciding cases between the officials of the state and the
citizens. In this view, 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. 10
There must be equality before law or equal subjection of all classes to the ordinary law. All
people should be subject to one and the same law. There is no need for extraordinary tribunals
or special courts to deal with cases of Government and its servants (such as the one seen in Droit
Administratif). The attribute of “Rule of Law” Dicey stated was “equality before the law and
5
The law of the constitution, 8th ed. P. 198.
6
Dicey, law of the constitution, 8thed. P. 198.
7
Administrative law, 1988, p. 23.
8
Dr. j.j.r. upadhyaya, administrative law, centrl law agency, Allahabad, 2015.
9
lljs.in/wp-content/uploads/2017/08/Rule_of_Law
10
Supra note 6.
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equal subjection of all classes to the ordinary law of the land administered by the ordinary law
courts.” The second principle emphasizes everyone, including the government, irrespective of
rank, shall be subject to the same law and courts. This element is interpreted to be misguided and
facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society,
there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may
exercise prerogative powers which may defeat the rights of individuals. The police have powers
over and above the citizen. Members of Parliament have immunity from the law of defamation.
Prof. Dicey states that, there must be equality before the law or equal subjection of all classes to
the ordinary law of the land. He criticised the French legal system of droit Administrative in
which there were separate administrative tribunals for deciding the cases of State Officials and
citizens separately.11
Explaining the third postulate, Dicey says that the general principles of the constitution are the
result of judicial decisions of the courts in England. In many countries rights are guaranteed by a
written constitution; in England it is not so. Those rights are the result of judicial decisions in
concrete cases which have actually arisen between the parties. The constitution is not the source
but consequence of the rights of individuals. Dicey apprehended that if the source of
fundamental rights of the people is any written constitution, that right can be abrogated at any
time by amending the constitution. In this way the rule of law postulates judicial supremacy.12
The rights are a result of court judgements rather than from being enshrined in the Constitution.
The Constitution is a consequence (and not the source) of the rights of the individuals. Thus,
Courts are the guarantors of the liberty Rights would be secured more adequately if they were
enforceable in courts rather than just being written in the Constitutional document. Mere
incorporation in a written constitution is of no use in the absence of effective remedies of
protection and enforcement. Wade: Government is a subject of the Rule of Law, rather than the
law being a subject of the Government.
The Third meaning of the rule of law is that the general principles of the constitution are the
result of juridical decisions determining file rights of private persons in particular cases brought
before the Court. Dicey states that many constitutions of the states (countries) guarantee their
citizens certain rights (fundamental or human or basic rights) such as right to personal liberty,
freedom from arrest etc. According to him documentary guarantee of such rights is not enough.
Such rights can be made available to the citizens only when they are properly enforceable in the
Courts of law, For Instance, in England there is no written constitution and such rights are the
result judicial decision. Application of the Doctrine in England: Though, there is no written
11
Supra note 3
12
Supra note 6.
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constitution, the rule of law is applied in concrete cases. In England, the Courts are the
guarantors of the individual rights. Rule of law establishes an effective control over the executive
and administrative power.
CRITICISM
The view of Dicey as to the meaning of the Rule of Law has been subject of much
criticism. The whole criticism may be summed up as follows. Dicey has opposed the
system of providing the discretionary power to the administration. In his opinion
providing the discretionary power means creating the room for arbitrariness, which may
create as serious threat to individual freedom. Now days it has been clear that providing
the discretion to the administration is inevitable. The opinion of the Dicey, thus, appears
to be outdated as it restricts the Government action and fails to take note of the changed
conception of the Government of the State. Dicey has failed to distinguish discretionary
powers from the arbitrary powers. Arbitrary power may be taken as against the concept
of Rule of Law. In modern times in all the countries including England, America and
India, the discretionary powers are conferred on the Government. The present trend is
that discretionary power is given to the Government or administrative authorities, but the
statute which provides it to the Government or the administrative officers lays down
some guidelines or principles according to which the discretionary power is to be
exercised. The administrative law is much concerned with the control of the discretionary
power of the administration. It is engaged in finding out the new ways and means of the
control of the administrative discretion.
According to Dicey the rule of law requires that every person should be subject to the
ordinary courts of the country. Dicey has claimed that there is no separate law and
separate court for the trial of the Government servants in England.
He critcised the system of droit administrative which is prevailing in France. In France
there are two types of courts Administrative Court and Ordinary Civil Courts. The
disputes between the citizens and the Administration are decided by the Administrative
courts while the other cases, (i.e. the disputes between the citizens) are decided by the
Civil Court. Dicey was very critical to the separation for deciding the disputes between
the administration and the citizens.
According to Dicey the Rule of Law requires equal subjection of all persons to the
ordinary law of the country and absence of special privileges for person including the
administrative authority. This proportion of Dicey does not appear to be correct even in
England. Several persons enjoy some privileges and immunities. For example, Judges
enjoy immunities from suit in respect of their acts done in discharge of their official
function. Besides, Public Authorities Protection Act, 1893, has provided special
protection to the official. Foreign diplomats enjoy immunity before the Court. Further,
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the rules of public interest privilege may afford officials some protection against orders
for discovery of documents in litigation.13
CONCLUSION
Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory.
Third meaning given to the rule of law by Dicey that the constitution is the result of judicial
decisions determining the rights of private persons in particular cases brought before the Courts
is based on the peculiar character of the Constitution of Great Britain. In spite of the above
shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the
attention of the scholars and authorities towards the need of controlling the discretionary powers
of the administration. He developed a philosophy to control the Government and Officers and to
keep them within their powers. The rule of law established by him requires that every action of
the administration must be backed by law or must have been done in accordance with law. The
role of Dicey in the development and establishment of the concept of fair justice cannot be
denied. The concept of rule of law, in modern age, does not oppose the practice of conferring
discretionary powers upon the government but on the other hand emphasizing on spelling out the
manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land
whether he be private citizens or a public officer; that private rights are safeguarded by the
ordinary laws of the land. Thus the rule of law signifies that nobody is deprived of his rights and
liberties by an administrative action; that the administrative authorities perform their functions
according to law and not arbitrarily; that the law of the land are not unconstitutional and
oppressive; that the supremacy of courts is upheld and judicial control of administrative action is
fully secured.14
13
https://oll.libertyfund.org/pages/dicey-his-life-law-of-the-constitution seen on 14.04.2019
14
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506 seen on 14.04.2019
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BIBLIOGRAPHY
Books referred:
Dr. J.J.R. Upadhyaya, Administrative Law, Central Law Agency, Allahabad, 2015.
Dr. Aditya Kesari, Lectures on administrative law,Central law publications, Allahabad, 2014.
Dr. Narendra Kumar, nature and concepts of administrative law, Allahabad law agency,
Faridabad.
Websites referred:
https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-
law-administrative-law-essay.php
http://www.aidiaasia.org/research-article/sanctity-of-judiciary-must-for-maintaining-rule-of-law-
constitutionalism
http://shodhganga.inflibnet.ac.in/bitstream/10603/175021/7/06_chapter%202.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506
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