Introduction

“Democracy only has substance if there is the rule of law. That is if people
believe that the votes are going to be counted, and they are counted. If they
believe that there is a judiciary out there that will make sense of things if
there is some challenge. If there is no rule of law, people will be afraid to vote
the way they want to vote.” --Timothy D. Snyder

What is rule of law

The principle of the Rule of Law is a key component of modern civil society.
As the phrase suggests, the rule of law is the rule of statutes, regulations,
and other rules. It refrains from the arbitrary actions of men. It is to be noted
that, rule of law in no way signifies any ‘law’ or any ‘rule’ rather it is a
doctrine of moral administration of a state with political and social justice. It
strives to maintain an ‘optimum balance of power’ between the two strata of
social structure i.e. The rulers and the ruled. The Rule of Law establishes an
equilibrium between the rights of the individuals and the duties of the state.
The idea of rule of law is based on the principles of liberty, fair treatment,
due process, equity, equality, and transparency.

The Rule of Law, like many other theories, is a highly detailed and evolving
theory that defies precise definition. The expression ‘Rule of Law’ has been
used to distinguish itself from the expression ‘Rule of Men’ which involves
arbitrary actions by individuals. The values of sovereignty, equal opportunity,
indiscrimination, brotherhood, tolerance, and equity are built on the rule of
law. In a broad sense, the term ‘rule of law’ is often used in two ways:
formatically and ideologically.

Ideological Sense relates to the direct influence on the interaction which

takes place between the citizens as well as with the authority, while Formatic
Sense pertains to institutionalised authority as contrasted to one-man
tyranny.

Definition of rule of law

Though the concept of Rule of Law is not such a concept that can be
summarised in a definite number of words. Despite this, several renowned
academicians, lawyers, institutions as well as scholars have tried to define
the Rule of Law.

One of the renowned personalities in administrative law, Professor William

Wade defined the Rule of Law as –
“The rule of law requires that the government should be subject to the law
rather than the law subject to the government.”

According to Black’s law dictionary,

“Rule of Law is the supremacy of law in which decisions are made based on
well-established principles or laws, with no discretionary involvement in the
application of such principles or laws.”

The United Nations Secretary-General describes the rule of law as follows –

“A principle of governance in which all individuals, institutions, and entities,

public and private, including the state, are held accountable to laws that are
publicly promulgated, equally enforced, and independently adjudicated, and
are consistent with international human rights norms and standards.” It also
calls for safeguards to ensure that the supremacy of the law, equality before
the law, accountability to the law, fairness in the application of the law,
separation of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness, and procedural and legal transparency are
upheld.”

Other scholars have also defined the rule of law as ‘the symbol of ultimate
authority. This authority is so powerful that no man, whatever the case may
be, cannot override this authority. Explaining the scope and ambit of the rule
of law, Lord Denning in the case of Gouriet v. Union of post office workers
(1978) held that the law of the land is supreme which no man can dominate.
Irrespective of the power or status an individual possesses, law of the land
shall be above them and it shall prevail under all circumstances.

Distinguished Sociologist and Political Scientist, Max Weber defined the Rule
of Law as the –

“Legal domination as an idea of the government of law rather than an idea of

men.”

Despite several definitions of Rule of Law, one cannot deny the fact that each
of the above definitions is in itself incomplete. There are multiple loopholes in
these definitions.

Across several constitutions around the world, the Rule of Law is considered
the ‘Principle of Stimulation’ as it stimulates life to the laws mentioned in the
constitution.

Rule of law implies that everyone, including the authority and its
representatives, as well as individuals, should follow the law. In case of any
violation of such law, the violator irrespective of the status, caste, creed, or
other attributes shall be punished following the provisions of the concerned
constitution.

The Doctrine of Rule of Law has also been referred to as ‘supremacy of law’.
This signifies that where the rule of law exists, no one can be considered to
be above the law; even the powers and conduct of the executive organ of the
government must be governed by the law. Even the one making the law i.e.,
Legislature is also not above the law. All the legislators are expected to work
in accordance with the laws mentioned in the constitution.

In a democratic institution, the rule of law places an obligation on all

individuals to abide by the law, and the legislation itself must be just. It
should not be arbitrary or tyrannical.

The ultimate aim of the rule of law, like some other constitutional concepts, is
to promote people’s fundamental rights and constitutional protections. The
rule of law is a concept that ensures that the three organs of the government
i.e., legislature, executive, and judiciary do not utilise the law of the territory
or nation to subjugate or limit the freedoms guaranteed by the constitution of
different countries.

The notion of rule of law has been somewhat enlarged in the Indian setting.
The Supreme Court has, on several occasions, clearly articulated and
highlighted the rule of law through its decisions in support of A.V. Dicey’s
theory of rule of law. It is regarded as part of the Constitution of India. The
Supreme Court has stated in several landmark judgments that the Rule of
Law comes under the basic structure of the Constitution of India and as such,
it cannot be abolished or modified even by the Parliament. The preamble
affirmed the ideas of the Constitution regarding liberty, equality, and
fraternity. Even if the goal is to defend and secure peace and order, the rule
of law dictates that no one shall be subjected to harsh, uncivilized, or
discriminating treatment.

Origin and history of rule of law

The rule of law is the outcome of the struggle and hardship faced by
generations since time immemorial for recognition of their basic rights. The
phrase ‘Rule of Law’ has been derived from the French phrase ‘le Principe de
legalite’ which means the principle of legality.

The origin of the Rule of Law can be traced back to the 13th century A.D. It
was during the 13th century that Henry de Bracton, a judge in the reign of
Henry III stated during the hearing of one of the cases that – ‘The King is not
supreme. He is subjected to the almighty and the law. The king is subjected
to the law because it is due to the law only that he is made a king.’
Although Judge Henry did not explicitly use the phrase ‘Rule of Law’, he
highlighted the essence of the principle of rule of law.

In modern times, the credit for originating the concept of rule of law has been
given to Edward Coke. He reinstated the words of Judge Henry and said that
the King must be under God and the law. He further reaffirmed the
supremacy of law over the sense of superiority of the executive.

Initially, several Greek philosophers such as Aristotle, Plato, and Cicero are
considered to be the proponents of the Principle of the Rule of Law. For
instance, advocating the Rule of Law, Plato in his book ‘Complete works of
Plato’ wrote that –

“The collapse of the state is not far where the law is made subjective to the
authorities but the states where the law is considered supreme all the
blessings of the god fall on such a state and it flourishes through all times.”

As per a distinguished Greek scholar, Aristotle – The rule of law is the system
of regulations that are inherent in the natural setting of the social structure
prevailing in the society.

Rule of law in England

With the signing up of the Magna Carta in 1215 by King John, the rule of law
began in England. When the Magna Carta of 1215 was signed, the
monarchical form of government prevailing in then England conveyed its
approval to be under the law, thereby making law – the ultimate supreme.

However, in England, the principle of Rule of Law took a new twist when the
disagreement arose between the Parliament and the Monarchical system in
the quest for more powers. Both the Parliament and the Monarch were
struggling to attain the status of ultimate authority. In the end, the
Parliament turned out to be the winner. The parliament was declared
supreme over the monarchy. As a result, several laws were made by the
parliament which governed as well as limited the power of the monarchy.
This incident is considered the actual beginning of the rule of law in England
as the executive organs of the government were now subject to the laws
made by the Parliament.

Characteristics of rule of law

The doctrine of rule of law comprises several characteristics which are as
follows:

1. The Rule of Law explicitly condemns arbitrary actions by men. The

foundation of the Rule of Law is safeguarded when authorities are
 not permitted to govern as per their inclinations and eccentricities
while practising their authority.
2. No one can be prosecuted or severely punished under the concept
of the Rule of Law unless and until he has violated the laws.
3. As per the Rule of Law, everybody is equal before the law. No one is
above the law. Law does not change itself depending on the person
before the law. Rich, poor, white, or black plays no role in the
implementation of law and it provides justice to everyone
irrespective of their caste, creed, status, gender, etc.
4. The Rule of Law is a fundamental basis of most democracies around
the world because it is pervasive in its applicability and has been a
component of most judicial systems around the globe.
5. As per the doctrine of Rule of Law, an individual could only be
penalised if he is accused of a violation of any law and that
accusation is proven by an autonomous entity, such as a court.

Basic principles of rule of law

The doctrine of rule of law comprises several basic principles. Some of them
are as follows:

1. Supremacy of Law. Law is above everyone irrespective of an

individual’s rank, status or position.
2. Whims and Fancies play no role in a state where rule of law prevails.
All the actions of the legislature and the executive are held in
accordance with laws.
3. No person shall suffer due to the arbitrariness of another. One can
be punished only by the procedure established by law and for the
violation of such law.
4. The absence of arbitrariness and discretionary decision-making is
the heart and soul of the Rule of Law.
5. The rule of law entails equality before the law and equal protection
of the law.
6. There are powers provided to people holding specific authority. Such
power shall be exercised keeping in mind the limitations and
boundaries that are set by the law itself.
7. Law provides protection and justice against any tyrannical action
taken by the executive.
8. The judiciary is the preserver as well as the protector of the rule of
law. It is meant to be independent and free from biases.
 9. For every action taken by the executive, just procedure should be
followed, and fair treatment should be provided to all the
individuals.
10. A speedy trial is the basic component of rule of law. It
entails ‘Justice delayed is justice denied’.

Exceptions to rule of law

The rule of law mandates both authorities and people to be answerable to the
law, which is of indisputable utility in advanced democratic nations. To meet
the demands of legitimate government, a wide range of exceptions have
been inserted under Dicey’s theory of rule of law. Nonetheless, even after
introducing numerous exceptions, the fundamental concepts of the rule of
law are protected and reinforced.

In India, dicey’s theory of rule of law cannot be claimed to be strictly

observed; various exceptions are given by the Indian Constitution as well as
other legislation. Some of these exceptions are as follows:

1. One of the fundamental exceptions to the theory of rule of law is the

presence of broad discretionary powers provided to the executive
organ of the government. Under the constitution of India, the
president, as well as the governor of all the states, have been
provided with broad discretionary powers in connection to several
matters enshrined under three lists of the constitution.
2. According to Article 72 and Article 161 concerning the president of
India and the governor of the states respectively, they have the
power to grant pardons, reprieves, respite, or remissions of
punishment or to suspend, remit or commute the sentence of any
person convicted of any offence.
3. According to Article 85 of the Indian Constitution,
(1) The President shall from time to time summon each House of Parliament
to meet at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date appointed for
its first sitting in the next session.

(2) The President may from time to time —

(a) prorogue the Houses or either House;

(b) dissolve the House of the People.

4. On the other hand, the governor of the state has the power to
reserve the bill for consideration sent by state assemblies
 under Article 200 of the Constitution. Also, the governor has a
discretionary power under the Constitution of India to send the
report of state to the president for declaration of state emergency
under Article 356 of the Constitution of India.
5. Police officers, who are components of the executive organ of the
government, have broad powers of arrest without even a warrant in
cases of cognizable offences. In India, criminal courts have broad
discretionary powers in imposing punishments.
6. Article 14 of the Constitution of India emphasises equality before the
law. However, it does not mean that the powers and privileges
provided to the ordinary citizens of a country can be the same as
that of public servants. Public servants like administrative officers,
police officials, municipal authorities, and other such officials have
been provided with certain privileges and immunities for better
functioning of the system. Ordinary citizens of a country have been
deprived of such powers.
7. According to Article 361 of the Indian Constitution, the President of
India or the governors of the states shall not be answerable under
any court of law regarding the discharge of duties under the position
held by the individual.
8. Also, as per the Constitution, no proceedings shall be instituted
against the President or Governor of state regarding any criminal
accusation while he is in office.
9. Under the constitution, no civil proceedings can be instituted against
the President or Governor of a state in which relief can be claimed
except after the expiration of a 2-month notice that is served on
him.
10. According to international law, visiting heads of government of
the foreign state, chiefs of government, politicians, bureaucrats, and
foreign dignitaries who are deployed in the foreign state are not
subject to the laws of local courts while performing their authorised
activities.

A.V. Dicey’s theory of rule of law

Albert Venn Dicey, a Britain-based constitutional jurist, is given the credit for
propounding the concept of rule of law which was originally introduced by Sir
Edward Coke. In 1885, Dicey in his book – ‘The Law of the Constitution’
enumerated the concept of Rule of Law which made a differentiation between
the law of administration and the rule of law.

He gave several real-life examples to explain his theory. He stated that the
essence of rule of law is equality and equal treatment. He took the instance
of the person in power, say, the Prime Minister, and an ordinary citizen of a
country working in a 9 to 5 job. He said that in a state where rule of law
prevails both the prime minister as well as an ordinary citizen of a country
working in a 9 to 5 job shall be treated equally irrespective of the position
they are holding.

Hence, the same laws should be enforced for everybody, there should be no
distinction under the rule of law based on certain defined variables. The rule
of law advocates the supremacy of law. A.V Dicey proposed three postulates
of Rule of Law, which are as follows:

1. Supremacy of Law
2. Equality before the Law
3. The predominance of legal spirit

Postulates of rule of law

Supremacy of Law
It is the first postulate of Dicey’s theory of rule of law. It indicates that the law
is supreme over all individuals. It also includes the individuals who are
making, administering, or executing the laws. As per the words of Dicey, the
rule of law is constituted by absolute supremacy of the laws in contrast to the
tyrannical power exercised by the government. In brief, an individual must
only be penalised for a specific violation of the laws, and not for something
else. The individual must not be prosecuted by the state just on the ground of
its unilateral arbitrary will. One can only be punished in accordance with
established legislation.

Furthermore, Dicey claimed that personal discretion can have no place where
the rule of law is supreme. Discretion, he believes, is linked to arbitrary
nature. According to Dicey, whenever a decision is taken through personal
discretion, there is ample opportunity for the state’s arbitrary nature as well
as discretionary control to undermine the fundamental liberty of the
individuals.

Equality before Law

The second postulate of Dicey’s theory of Rule of Law is Equality before law.
It states that every individual, regardless of status or rank, is subject to
ordinary laws of the land as well as the jurisdiction of the ordinary court, not
any special court. All the special courts offering competence under special
laws, in his opinion, are a danger to the values of equality. As a result, he
believes that all individuals should be governed under the same code of
norms and values and be legally challenged by the very same civil
courts.
Even the Indian Constitution states the second pillar of Dicey’s theory of rule
of law. Under Article 14 of the Constitution of India, it is stated that –

Equality before Law – “The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.”

The predominance of the legal spirit

The third postulate of Dicey’s theory of Rule of Law is the predominance of
legal spirit. As per Dicey, for the rule of law to prevail, there has to be an
enforcement institution, which he recognised in the court system. He felt that
because the courts are the actual enforcers of the rule of law, they should be
devoid of bias and extraneous intervention. The autonomy of the judicial
system is thus a critical component for the functioning of the rule of law. He
claimed that the institutions of law, rather than the codified constitution, are
the supreme guardians for the protection of the fundamental rights of the
individuals.

Dicey’s theory of Rule of Law has been criticised from numerous

perspectives, but the main premise articulated by him is that authority is
derived from law. It must also be employed in accordance with the law. In
simple terms, Dicey’s concern in his theory of the rule of law is on the
elimination of arbitrary and discretionary decision-making by people in
authority, avoidance of misuse of power, equal treatment under the law, and
protection under the law for fundamental rights, and these values remain
meaningful and pertinent in every constitutional democracy even today.

Criticism of Dicey’s theory of rule of law

A. V. Dicey’s theory of rule of law has been appealing to the nineteenth-
century individuality thoughts. However, it has also been the recipient of
critical assessment. Several academic researchers and jurists have claimed
that Dicey’s conclusions and assertions contain several fallacious arguments.
Some of the criticism faced by Dicey’s theory of rule of law are as follows –

Wade and Forsyth

They argue that even in England, there was no absolute equality of law since
the Monarch was granted several exemptions under the doctrine of Rex Non-
Potest Peccare which stated that ‘The King can do no wrong as he is a son of
God, and he cannot be prosecuted.’ Dicey was reprimanded for casting a
blind eye to the King’s privilege and claiming equality before the law which is
a crucial assumption of the rule of law to prevail in England.

William Paton
William Paton stated that the constitution of the United Kingdom was the
consequence of political struggle rather than logical inferences from the Rule
of Law.

Dicey, on the other side, argued that the Rule of Law was considered during
the drafting of the constitution, which is the reason there existed a Preamble.
William Paton was highly opposed to this assertion and contended –

“These are undoubtedly the characteristics of the past and are not logical
deductions from the rule of law. For law may have a varying content; it may
protect the subject against despotism or give the most ruthless power to a
tyrant. It is not enough for the democrat to demand a rule of law–everything
depends on the nature of that law. Every legal order which functions as a rule
of law; applies to the Nazi state as well as a democracy.”

William Ivor Jennings

He challenged each of Dicey’s three proposed postulates of the Rule of Law
which he mentioned in his book.

The initial interpretation assigned to the Rule of Law has been the supremacy
of law, i.e., law as contrasted to arbitrary power, in order to rule against the
presence of broad discretionary authorities on the side of the government.
However, Dicey made no distinction between arbitrary and discretionary
powers. The legislative authority of the government was also employed at the
pleasure of the concerned individuals in power.

Moreover, Dicey emphasised that every man is subject to the same legal
rules of the land, which are implemented in ordinary courts. Ivor Jennings
directed the contemplation to the growing tendency of placing adjudicatory
powers in administrative agencies and commissions, as well as the privilege
granted to public servants in the performance of their duties.

Lastly, Dicey claims that the basic tenets of the constitution of England are
the product of conventional laws of the nation, which means that they are the
consequence of legal pronouncements. Jennings called this an internally
inconsistent assertion because Dicey has limited his reasoning to only
specific constitutional freedom such as free speech. In actuality, the most
essential components that make up the British Constitution were not
established by judges.

Rule of law in India

The notion of the Rule of Law can be ascribed back to the Hindu scriptures in
India. Its roots can also be detected in sagas and epics such as the
Ramayana and Mahabharata, and also the Ten Commandments, the Dharma
Chakra, as well as other fundamental sacred writings. There have been no
writings in contemporary days that expressly examine or acknowledge the
theory of Rule of Law. The Rule of Law is considered to be incorporated in
numerous clauses of the Indian Constitution. The founders of the Constitution
were not just acquainted with Dicey’s postulates of Rule of Law, but also with
their application in British India.

Rule of law and Constitution of India

The Constitution of India is the guiding principle of the nation, from which all
other laws acquire their legitimacy, making all other laws subordinate to it
and following the postulates of the Rule of Law outlined by the Indian
Constitution.

Furthermore, Article 13(1) specifies that every law passed by the legislature
must be in accordance with the provisions of the Constitution, or it will be
considered unconstitutional. As a result, any new law must be consistent with
the requirements of the Constitution. Even the Preamble of the Constitution
of India includes the words justice, sovereignty, and equality, which are
unambiguous indicators of a just and fair government with no discrepancy
amongst the masses regardless of their social status.

Dicey’s enumeration of equality before the law is included under Article 14 of

the Indian Constitution, which establishes the idea of equality before the law
and equal protection under the law. The right to life and personal liberty,
which is a fundamental human right, is also enshrined in the constitution for
all citizens.

The word ‘rule of law’ has no set formulation in the Indian constitution.
However, Courts in India use it in a plethora of judgments. In India, the
proverb ‘The King can do no wrong’ does not apply, as all public institutions
are subject to the jurisdiction of common law courts and the same sets of
laws. The Indian constitution is the supreme law of the land, superseding the
3 organs of the government i.e., the Judiciary, the Legislature, and the
Executive. These three governmental organs must act in accordance with the
principles enshrined in the constitution of India.

Rule of law and the judicial system of India

The judiciary has consistently worked to uphold the Rule of Law and has had
equal backing from citizens and the state by adhering to the legislation as
laid down by the legislature and enforced by the courts. Though there have
been numerous occasions where the citizens have engaged in violence
against the Parliamentary act or any judicial proceedings or doing actions
contrary to law.
Along with the provisions of the constitution, the judgments given by several
courts and tribunals have played a prominent role in the interpretation and
advancement of the doctrine of rule of law in India.

It has been opined by several distinguished jurists of India that the

Constitution of India is founded on the Principle of the Rule of Law.

During the hearing of Suman Gupta and others v. State of Jammu and
Kashmir and others in the Supreme Court, Justice R. S. Pathak stated that –

“Rule of Law, and in any system so designed it is impossible to conceive of

legitimate power which is arbitrary in character and travels beyond the
bounds of reason.”

Court judgments have been critical in countering any arbitrary nature on the
behalf of a nation. The Supreme Court ruled in A.K. Kraipak v. Union of
India (1970) that our welfare system is governed as well as regulated by the
Rule of Law. In Maneka Gandhi v. Union of India (1978), the Supreme Court
ascertained that the government’s arbitrary exercise of power would violate
people’s rights. The Supreme Court interpreted Article 14 of the Indian
Constitution as well as widened its scope in the case of E.P. Royappa v. State
of Tamil Nadu (1973). The Apex Court stated that this article added a new
meaning to the rule of law, and it was regarded as a safeguard against
arbitrariness.

In a subsequent decision, the Supreme Court observed that the Rule of Law,
as enshrined in Article 14 of the Constitution, is a basic feature of the Indian
Constitution and thus cannot be amended, revoked, or modified even by a
constitutional amendment under Article 368 of the Constitution. In
accordance with the third postulate of the Rule of Law principle, India has a
strong judicial system that checks other organs of government while carrying
out work independently.

In the landmark case of Indira Gandhi v. Raj Narain, the Apex Court stated
that the doctrine of Rule of Law enshrined under Article 14 of the Constitution
of India forms the ‘Basic Structure’ of this Constitution. It asserts that even an
amendment under Article 368 of the Indian Constitution cannot destroy this
legal provision.

The constitutional validity of Articles 323A and Article 323B of the Indian
Constitution has been challenged in Chandra Kumar v. Union of India (1997)
on the grounds that it is contrary to the spirit of the law because it exempts
the jurisdiction of the Supreme Court under Article 32 and the High Court
under Article 226 of the Indian Constitution in matters tried by the Central
Administrative Tribunals under same provisions. The Court declared the
judiciary’s independence to be a part of the basic structure, and it also
overturned the amendment to Article 323A of the Constitution. In a later
case, the Supreme Court ruled that disputes over the legality of the
government’s actions will be made by judges who already are distinct from
the Executive. As a result, the ultra vires or arbitrary acts of the government
are checked.

The Habeas Corpus case was among the most significant in terms of the Rule
of Law. The question before the Supreme Court was whether there is another
repository of the rule of law in India besides Article 21 of the constitution. The
majority’s decision on this question was negative, but Justice H.R. Khanna
issued a dissenting opinion in which he stated that even in the absence of
Article 21 in the Constitution, the state has no power to deprive a person of
freedom even without the authority of law.