Social life requires cooperation and order, and order requires laws. It is
possible to have order of some sort, by submitting to the rule of a leader, a
dictator who is able to coerce the non-cooperative into obedience. But such
submission to the rule of men could involve loss of freedom and subject the
people of whims of men. The ideal solution thus lies in the rule of law, which
guarantees both order and freedom.
Rule of law
means that the government in all its actions is bound by rules
fixed and announced before hand. It protects the citizen from arbitrary
decisions and arbitrary coercion. Justice Coke of England is said to be the
originator of this concept. However, concrete shape was given to it by A. v/s
Dicey in his book ‘Law of the Constitution' (1881). He stated his conception of
the rule of law in the form of three principles:
- That no man is punishable or can be lawfully made to suffer in bad or
good, except for distinct breach of law established in the ordinary legal
manner before the ordinary courts of law.
- That no man is above the law, every man whatever be his rank or
condition is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.
- That the general principles of the Constitution (for example right to
personal liberty, right to public meeting etc) are the result of judicial
decisions determining the rights of private persons in particular cases
brought before the court.
Dicey's third meaning of the rule of law applies only to the British
Constitution, yet his formulation is regarded as a beginning point for
discussion on the subject of rule of law. Dicey laid down his principles in the
19th century. In the 20th century the ideas of individual liberty and human
rights have gained prominence, and the conception of rule of law has accordingly
An international Congress of jurist assembled in New Delhi in 1959 and
characterized rule of law in the following words:
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
right but also creation of certain political, social, economic, educational and
cultural conditions which are essential to the full development of his
The Congress emphasized that the rule of law has two aspects:
- Substantive, and
The substantive aspect of the rule of law recognizes certain rights of the
individual which he is entitled to enforce against the state. The procedural
aspect of the rule of law is concerned with giving practical effect to its
While the Congress did not go into the details of the substantive aspect of the
rule of law it elaborated the procedural aspect through for committees, whose
recommendations may be summarized as below:
- The legislature and the rule of law;
- The legislature should not pass discriminatory laws.
- The legislature should not interfere with the freedom of religion,
speech, assembly, or association.
- The legislature should not pass retroactive laws.
- The executive and the rule of law,
- The executive must provide an effective government capable of
maintaining law and order.
- The powers conferred on the Executive must be subject to proper
safeguards and judicial review.
- The criminal process and the rule of law,
- There must be certainty of the criminal law.
- There must be presumption of innocence of accused.
- There must be a public trial and fair hearing.
- The power of arrest must be strictly regulated by law.
- The accused should have the freedom to have the counsel of his choice.
- The judiciary and the legal profession under the rule of law
- The judiciary must be independent; such independence implies freedom
from interference by the executive of legislature in the exercise of
- There must be an organized legal profession free to manage its own
- Legal aid programs must be devised to provide equal access to the law
for the rich and poor alike.
Even though the concept of rule of law has expanded to new areas, the basic
value of the rule of law remains the same. It is the fullest possible provision
by the community of the conditions that enable the individual to develop into a
morally and intellectually responsible person; it is inherent in the concept
that it is an ideal state, attained to varying extends by nations of the world.
The rule of law has its bearing in India from the very beginning of
There are instances in Indian History of kings being punished for the violations
of the laws of their own kingdom. But this concept of the rule of law did not
resemble the concept as it developed in the west during the 18th and 19th
centuries. The biggest factor undermining the existence of rule of law was the
existence of institutionalised inequality in the form of the caste system. The
Constitution of India came into force on 26th January, 1950. This document
abolished the caste system and became the embodiment of rule of law in India.
The Constitution embodies the concept of rule of law. It guarantees equality
before the law or equal protection of the laws to all citizens, and every
citizen is protected from arbitrary exercise of power by the State. We have a
judicial system which works impartially and free from all influences. The Rule
of law prevails over the entire field of administration and every organ of the
state is regulated by the rule of law.
It has been held by the Supreme Court in Indira Nehru Gandhi v/s Raj Narain,
S.P. Gupta v/s Union of India, Sambhamurthy v/s State of A. P.,
Rule of law is a basic feature of the Constitution and cannot be taken away even
by an amendment of the Constitution. This was also reiterated when the Supreme
Court invalidated a clause of the 39th Amendment of the Constitution on the
ground of the violation of the rule of law, Smt. Indira Gandhi v/s Raj Narain,
Minerva Mills Ltd. v/s Union of India.
A significant role has been played in
the development of rule of law by our Supreme Court by the under landmark
decisions it has extended the reach of the concept of rule of law.
With Maneka Gandhi v/s Union of India
, it has begun recognizing certain
judicially enforceable fundamental rights, flowing from Article 21 of the
Constitution. Thus in Hoskot v/s State of Maharashtra, it recognised a
fundamental right to legal aid. Similarly, Speedy trial, Hussainara Khatoon
y. State of Bihar.
Freedom from torture in the jails, Sunil Batra Versus Delhi
. Right to minimum wages, People's Union for Democratic Rights
v/s Union of India. Rehabilitation of the bonded labourers, Bandhua Mukti
Morcha v/s Union of India
. Compensation for unlawful detention, Rudul
Shah v/s State of Bihar.
In conclusion, it can be said that the constitution has all the machinery
necessary for the development and maintenance of the rule of law. Yet it cannot
be said that the rule of law has been firmly established in India. Some
disturbing developments are:
- Increasing violence in the Indian Society.
- The all pervasive corruption.
- An estimated two hundred million cases pending before the courts of the
Rule of law cannot be established merely by enacting laws and giving rights
to the people. The desire for it must be a goal of every citizen of his country.Award Winning Article Is Written By: Mr.Mohd Aqib Aslam
Authentication No: SP26211602612-18-920