The doctrine of Rule of Law is ascribed to Albert Venn Dicey, a British
jurist and constitutional theorist.
His writings in 1885 on the British
Constitution included the following three distinct ideas of law:
- Supremacy of law: No man is above the law. No man is punishable by law
except for a distinct breach of the same. The government cannot punish
anyone at its own whims and fancies. Wherever there is discretion there is
room for arbitrariness and thus law must always protect individuals against
- Equality before law: Every man, whatever his rank, is subject to the law
of the land the courts. No man is above the law.
- Predominance of legal spirit: Judicial decisions are important in
determining rights of private persons in particular cases brought before the
court from time to time. Thus judicial pronouncements hold a very important
place in the moulding and development of law.
The basic tenet of Dicey's doctrine is that power is derived from, and to be
exercised according to procedure established by law. These basic tenets remain
relevant in every democratic nation, even today.
The concept of Rule of Law finds full expression in the Indian Constitution. The
Preamble re-emphasises on the high ideals of equality, justice, liberty and
fraternity. Part III of the Constitution lists various fundamental rights
available to people which act as a negative obligation on the State while making
These rights however are subject to various exceptions and limitations as well.
Part IV lists down the Directive Principles of State Policy which strengthen
the liberties mentioned in Part III by guaranteeing protection of the same. A
citizen can approach the Constitutional Courts viz. the High Courts and the
Supreme Court of India for breach of his fundamental rights. Legislature,
Executive and Judiciary are three organs under the Constitution and the
Constitution is the supreme authority.
Every organ must exercise powers conferred on it within the ambit as prescribed
by the Constitution. In case the same is breach, the jurisdiction under Articles
32 and 226 come into play.
The maxim King can do no wrong
is not applicable to India because, there
is equality before the law and equal protection of law to everybody. The
Union of India and respective State governments can be sued in ordinary courts
like an individual for any breach of contract entered into by them and for any
tort against an individual.
Rule of Law and Indian Constitution
Judicial activism is a philosophy of administering justice whereby judges allow
their personal views about public policy ignoring precedents. If one observes
the judgements delivered by the Supreme Court of India, one can perceive the
judicial pendulum shifting between two ends i.e. conservatism and judicial
The Indian courts vide various judicial pronouncements¸ have been instrumental
in strengthening the rule of law in India. Some of these shall be discussed
Article 44 of the Indian Constitution requires the State to strive to secure for
its citizens a Uniform Civil Code. If a Common Code is prepared and accepted by
all communities there would be no problem in respect of rights of women. For
achieving this target of course, we cannot move fast, all of a sudden but
decisions by courts and educating the masses and the fundamentalists to leave
their obstinacy in every walk of life and activity would be beneficial.
Lok Adalats programme is also gaining momentum. In Lok Adalat there is a agency
which negotiates with the parties. The movement started in Gujarat has now
spread all over the country. Lok-Adalats have now been given a legal status and
statutory basis. This movement has strengthened Rule of Law.
Under Article 39A of the Indian Constitution, the State is under an obligation
to promote justice on an equal opportunity and provide free legal aid by
suitable schemes and legislations. In lieu of this, the Courts in India
including the Constitutional Courts have established Legal Aid Committee (LAC).
The legal assistance at state cost is now treated as part of the fundamental
rights of a person. The LACs and Lok Adalats are in fact powerful devices to
reduce arrears of cases lying in courts.
The government is also liable for excess authority and for breach of fundamental
rights. One who obtains a writ in the nature of habeas corpus would be able to
assert a claim for compensation by way of damages for deprivation of his
personal liberty by functionaries of the State.
In India we have tried to stop and control pollution of air, water and
atmosphere through various legislations and judicial pronouncements. The various
PILs have also aided in reaching to this conclusion.
After independence, a committee on the status of women was set up which gave its
report in 1975 and it suggested some measures for upliftment of women in the
highly misogynistic Indian society ruled by opaque religious dictums. Abolition
of Sati, widow remarriage, inheritance rights to Hindu women are examples of how
judicial activism has helped uplift the status of Indian women. In its
174th Report, the Law Commission of India recommended to reform Hindu laws by
giving coparcenary rights to a Hindu woman.
In a significant development for women's movement in India, the Congress led UPA
government passed the Protection of Women from Domestic Violence Act, 2005,
granting protection to married woman and other women in a domestic household.
This is yet another glaring example of upholding the principle of Rule of Law.
Rule of Law is the fundamental of any legal system today that believes in a free
society where all are equal in the eyes of law. Equality in a society leads to
its prosperity and thus it is essential for any developing nation to inculcate
the same in its social and legal system.
Any nation must cling to this aspect of law unless lawlessness, anarchy and
social destruction are bound to happen.
- Articles 14-35 and Article 226
- Articles 36-54
- Art. 226
- Art. 32
- Art. 14
- Arts. 299 and 300
- P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd Ed., 2005.
- One may mark the ratio of following cases: Mohammed A. Khan v. Shah Bano
Begum, (1985) 2 SCC 556, Bijoe Emauel v. State of Kerala, (1986) 3 SCC 615,
Madhu Kiswar v. State of Bihar, (1996) 5 SCC 125, Githa Hariharan v. RBI,
(1999) 2 SCC 228.
- M.H. Hoscot v. State of Maharashtra, (1978) 3 SCC 544.
- Rudal Shah v. State of Bihar, (1983) 4 SCC 141.
- M.C. Mehta v. UOI, AIR 1987 SC 965; M.C. Mehta v. UOI, AIR 1988 SC 1037.
- Lawyer's effective, July 2000, p. 3.