The term Rule of Law
is derived from a French phrase La Principe de
meaning the Principle of legality and referring to a Government
based on principles of Law and not men. The Black’s Law Dictionary defines
it as Legal Principles of day to day application, approved by the Governing
bodies or authorities and expressed in the form of logical proposition
According to Prof. A.V. Dicey in his book The Law of the Constitution (1885)
defined The Rule of Law as the 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. Legislature, Executive and Judiciary helps to maintain the system
of checks and balances and ensures the Laws are fulfilling the purposes they
were made for. No one is subject to any action by any government agency other
than in accordance with the law and the model litigant rules. The judiciary
is independent and impartial.
This concept is very old and its roots can be traced in the history of
governance. In the thirteenth century, Bracton, who was a judge during the reign
of Henry III introduced this concept without christening it. He wrote: .....The
king himself ought to be subject to God and the law, because law makes him king.
The Magna Carta, Mayflower Compact, English bill of rights, Cato’s Letter,
Common Sense played major roles in the evolution of this concept .In India, the
concept of Rule of Law can be traced back to the Upanishad. Its traces can also
be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma
Chakra and other seminal documents. Modern concept was developed by the
International Commission of Jurists, known as Delhi Declaration, 1959, which was
later on confirmed at Lagos in 1961.
In the 4th century BC, Aristotle distinguished ‘the Rule Of Law’
‘that of any individual’
, showing that the concept has been central to
political and legal thought. In the 18th century the French political
philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted
the legitimate authority of monarchs with the caprice of despots. It has since
profoundly influenced Western liberal thought. The emphasis was laid on the need
for the rules and procedures that would ensure that laws are used for the
protection of rights and not just a means of legitimising the use of powers.
Dicey in his work elaborately defined the proposition of Rule of Law and gave it
three meanings. The first interpretation is Supremacy of Law
, it is
the central characteristic of Common Law. According to this principle the Law is
the supreme authority and opposes the influence of any kind of arbitrary and
discretionary power on the part of the Government. It lays down that a person
could be penalised only if he breached an established legal rule which has been
proved in the Court of Law.
The definition given by Dicey further includes Equality before the Law; it
establishes the principle that all are equal in the eyes of Law and are equally
subject to the law of the land. Dicey opposed the enjoying of privileges and
immunities by any kind of officials. He also denies the requirement for various
tribunals or special courts to deal with cases of Government and citizens as
propounded in the Droit Administratif.
Lastly, the definition supports Predominance of Legal Spirit
. It is not
in the support of applying the words of Law, it rather emphasises on
interpreting the real intention behind the making of any law and focussing on
the real intent behind the making of Law. It would lead to reduction in
arbitrariness and faults in the judgement. Rights would be secured more
adequately if instead of merely writing in the Constitution they are subjected
to the interpretations of the Courts and Judges. It means that the rights of the
individual are not only ensured by the guarantees set down in a formal document
but by the ordinary remedies available against those who unlawfully interfere
with someone’s liberty.
Wade also mentioned that:
Government is the subject of Law, rather than the Law being the subject of the
The Rule of Law is applied far and wide and various features of the Constitution
show its acceptance. The Constitution of India contains various features that
show the application of the Rule of Law in the Indian context some of them are
Preamble, Fundamental Rights, DPSPs, Doctrine of basic Structure, Universal
Adult Franchise and Judicial Review. Part- III and all Fundamental Rights come
under the Rule of Law, which are enforceable by Law and one can approach the
High Court or the Supreme Court under Article 32& 226 on their violation. The
Right to Freedom of Speech and Expression forms part of the Fundamental Rights
and it is also recognized as a Human Right by the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights (ICCPR).
In the case of Menaka Gandhi Vs Union Of India
, Justice P. N. Bhagawati
expressed the importance of Freedom of Speech and Expression in case of a
democratic form of Government. Further in the case of People’s Union for
Civil Liberties Vs. UOI
, it was held by the Supreme Court that telephone
tapping is allowed unless it falls within grounds of Article 19(2) and talking
over telephone comes under the ambit of the above right, further increasing its
It can be suspended according to the Article 358 of the Constitution. The First
amendment of the U.S Constitution protects the Freedom of Speech and Expression.
Article 13 has the power to declare any Law that violates the Constitutional
provisions as unconstitutional and void. According to Article 32, the Supreme
Court has power to issue various writes namely, Habeas Corpus, mandamus,
prohibition, quo warranto and certiorari.
It also has the power of judicial review to prevent any ultra vires law. Article
15 and 16 as Right to Equality and Article 19, 20 and 21 in form of Right to
Life and Liberty are provisions of our Constitution to enforce the Rule of Law.
The dissenting opinion of Justice H.R. Khanna in the case of ADM Jabbalpur
Vs. Shivkant Shukla
 clearly stated that the State has got no power to
deprive a person of his life and liberty as provided by the Article 21 without
the authority of Law.
Not only the provisions in the Constitution of India provide for the application
of Rule of Law but it is also implemented by the Judiciary while giving its
interpretations to such provisions, which further act as precedents. It was
clearly stated by the Supreme Court in A.K. Kraipak V. Union of India
that ours being a welfare State, it is regulated and controlled by the Rule
Further in Indira Nehru Gandhi v. Raj Narain
 (1975) Rule of law
was held to be the basic feature of the Indian Constitution. Keshavananda
Bharti Vs. State Of Kerela
(1967) is a landmark decision in this
context. It laid down that Article 368 does not provide for absolute power of
ammendability and incorporated the Basic Structure Doctrine. It diluted its
judgement in the Golak Nath case
that Parliament could not amend or alter
any Fundamental Right.
Hussainara Khatoon v. State of Bihar
(1979) provided for the Right to a
speedy trial, M.H. Hoskot v. State of Maharashtra
(1978) provided for
the Right to free legal aid, S.R. Bommai Vs Union of India
laid down the guidelines for imposition of President’s rule under Article
356, PUCL v/s UOI NOTA
(2013) provided for the Right to negative
vote. The Section 125 of Code Of Criminal Procedure was invoked in Shah Bano
(1985) in providing her with maintenance money, similar to alimony.
The Nirbhaya Case
(2012) amended Rape Law to go beyond penile-vaginal
intercourse, this showed that Laws have always been accustomed to the changing
times and it’s main motive is to provide Justice. Naz Foundation v. Govt. of
NCT of Delhi
declared the criminalization of consensual sex between adults
as a crime to be violative of Fundamental Rights. With the advent of the
judgment of Navtej Johar Vs. Union of India
, Section 377 of IPC was
The Supreme Court in the Vodafone case also stated that ‘it is for the Courts to
try to stretch the law to meet hard cases is not merely to make bad law but to
run the risk of subverting the rule of law itself.’  In Secretary, State
of Karnataka and Ors. V. Umadevi and Ors
., the court withheld from
passing an order because it was in violation of Article 14 of the Indian
The application of this doctrine is not just limited to India, it can also been
seen in England. Though, there is no written 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.
The concept can be seen to be applied in the working of United Nations also. Its
Preamble mentions its aim to establish a sense of respect and obligations
towards International treaties and other regulations. It was also declared
in the Universal Declaration of Human Rights 1948 that Human Rights should be
protected by Rule of Law. The United Nations uses its multiple organs to ensure
the proper implementation of Rule Of Law.
The General Assembly is a open for deliberations and all its members enjoy equal
voting rights. To ensure the compliance of various International Laws,
International Court of Justice is set up. Other agencies like UNHCR, UNODC,
UNDEF promote the Rule of Law and encourage participation of all groups in
It was declared in Delhi Declaration, 1959 that the doctrine essentially
involves that the Government should exercise its functions in such a manner that
the dignity of a man is always upheld. Hayek takes it as an opportunity wherein
the people can guide their actions by clear formulation of Law and not by the
arbitrary decisions of any Government. Dicey states that they are no
separate courts for the trial of the Government servants in England. He was
strictly against the Droit Administratif system, prevalent in France.
This theory was further propounded by Joseph Raz (1977). He made his doctrine in
the form of 8 postulates. A.V. Dicey and Raz shared common grounds also. His
principles lay down the requirements of an individual’s behaviour and further
minimize the danger that could possibly result from the exercise of
discretionary power in an arbitrary manner.
During the time when Dicey gave his doctrine, it was not completely accepted and
Crown still exercised discretionary powers. Dicey instead of disapproving
arbitrary powers professed that the Administrative authorities should not be
given any powers. There was also no demarcation made as to what constituted
arbitrary powers and what not. The nature of Droit Administratif which was
successful in France, was not understood by him properly. The doctrine was more
concerned with the due procedure of law rather than the context of laws.
According to Dicey’s theory torture will also be valid if it is according to the
provisions of the Law.
The doctrine of Rule of Law has always been a vital part of the Indian
judiciary. While drafting of the Constitution of India provisions were also
taken from USA and England. The Constitution of India is always taken as the
Grundnorm of the country and no one is above it and any act done by either of
the three organs of the government is treated to be ultravires.
Rule of law serves as a system of checks for all the administrative action. The
Judiciary ensures that the organs of the Government do not overstep their
jurisdiction. Thus, judicial activism is kept into check. But in practise, there
have been instances in India where judiciary has tried to infringe upon the
territory of the other two organs. A recent example of this would be the
frequently debated reservation policy for the other backward classes.
The judiciary was in favour of removing the creamy layer benefiting from the
reservation policy, whereas the legislature and the executive were against it.
The doctrine helpes the administrative authorities confined to their limits by
acting as a yardstick to their actions. It also acted as a ground for the
development of the Administrative Law. Various other Institutional mechanisms
are instituted for the implementation of the Doctrine like the Independent
Judiciary, Separation Of Powers, CAG, CEC, CIC, NHRC and other things like
active media and citizen participation. The World Justice Project (WJP), a
current global initiative that seeks to promote the Rule of Law across the
Inspite of all the advantages of the doctrine its practical application in India
has always been challenged. In the survey of countries regarding the checks on
the Government, India is ranked 37th among 97 countries. In the survey of
absence of corruption India ranks 83rd among 96 countries, which further make
the application of the doctrine a difficulty.
There still are major challenges faced by the people trying to spread the
implementation of this doctrine. The insufficiency of proper safeguards and
mechanisms to curb corruption pose a serious threat to the implementation of the
doctrine. Despite various attempts we still not have been successful in the
installation of a proper justice mechanism in the form of courts and tribunals.
The agencies which are in force presently are also not capable of providing the
results they were estimated to provide, which is a major setback in the path of
development and implementation of this doctrine. External agencies like the
political parties also interfere in the working of Rule of Law.
Initially, it was restricted to ensuring procedural fairness but gradually it
also involved the substantive content. Until recent times, it was presumed that
the rule of law could never prevail against an express enactment of Parliament;
it was also considered that all the elements of right based Democracy were not
included in the Rule of law. Although a series of events do support the
proposition, however, a series of decisions of the House of Lords in the last
few years have breathed new life into the rule of law.
The rule of law in the Indian society has not yet achieved the intended results.
It can be observed that the deeply entrenched values of constitutionalism or
abiding by the Constitution of India have not taken roots in the society.
Corruptions, Terrorism etc. are all antithesis to Rule of Law. Today it is
accepted that the doctrine should be accepted for the embodiment of orderly
life. It expresses fundamental principles that must be acted upon by the
Government. It is to applied by the procedures laid down by the Law.
Though the series of Judgements, the provisions of the Constitution do
contribute to the Rule of Law, but there are occasions in which we fail to apply
the Rule of Law. The human nature of selfishness and egotism demonstrates that
power corrupts and absolute power corrupts absolutely. These instances instil
realization of the importance of application of the doctrine and make us return
A few examples of how our judicial system has upheld the rule of law and ensured
justice is clearly seen in the creation of new avenues seeking remedies for
human rights violations through PIL pleas and promotion of genuine interventions
by the judiciary in the areas of bonded and child labour, prostitution, clean
and healthy environment etc. but on the darker side there have been violations
of fundamental rights as well.
- Origin And Concept Of Rule Of Law' (January 2019)
- Black, Black’s Law Dictionary (2009)
- Brian Z. Tamanaha, On the Rule of Law (2004)
- Aristotle, Politics (1988)
- A .V.Dicey, The Law of the Constitution, (1885)
- Meneka Gandhi v. Union of India 1978 AIR SC 597
- A.D.M. v. Shukla AIR 1976 SC1207
- A.K. Kraipak and Ors. Vs. Union of India AIR 1970 SC 150
- Indira Gandhi v. Raj Narain AIR 1975SC2299
- Kesavananda v. State of Kerela AIR 1973 SC1461
- Golaknath v. State Of Punjab 1967 AIR 1643
- Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar 1979 SCR (3)
- Madhav Hayawadanrao Hoskot vs State Of Maharashtra 1978 AIR 1548
- S. R. Bommai v UOI 1994 AIR 1918
- Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844
- Naz Foundation vs Government Of Nct Of Delhi WP(C) No.7455/2001
- Navtej Singh Johar & Ors V Union Of India WP NO. 76 OF 2016
- Vodafone Vs Union of India CIVIL APPEAL NO.733 OF 2012
- Secretary, State of Karnataka and Ors. V . Umadevi AIR 2006 SC 1806.
- The Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies: Report of the SecretaryGeneral, UN SC, UN Doc. S/2004/616 at 4
- F.A. Hayek,The Road to Serfdom(1994).
- John Walter Jones, The Law and Legal Theory of the Greeks(1993).
- The World Justice Project Rule of Law Index 2011.