Historical Analysis on Rule of Law
Rule of law is the fundamental principle of governance in any civilized
democratic country and is the antithesis of arbitrariness. At the most basic
level, rule of law is the concept that every citizen and even the government is
governed by laws and everyone is equal before the law; no man is above the law.
The first proponents of this doctrine are believed to be Greek philosophers like
Aristotle, who considers this doctrine as a system of rules inherent in natural
order, and Plato.
Plato in his book known as 'Complete Works of Plato', is believed to have
written that the collapse of the state is very likely if the laws are made
subjective to the authorities but the states where the law is considered as
supreme all the blessings of the god fall on such a state and it flourishes. In
the modern sense, the most famous exposition of the concept of rule of law was
given by Dicey in his book THE LAW OF THE CONSTITUTION in respect to the powers
which the government must exercise in accordance with the law. Rule of law
consists of several basic principles which law and policy makers, judges should
consider while exercising authority in a democratic society. This means all
duties, power and functions of government, including its organs and authorities
are done in accordance with the law.
In England, Rule of law began around 1215 when King John of England signed
the Magna Carta of 1215, it indicated the consent of the Monarch to be under the
law and the law to be considered supreme. This doctrine took a new form after
the conflict between the monarchy and the parliament where both of them were
struggling to be the supreme authority. The result was the parliament becoming
supreme over the monarchy and it started making the laws which controlled and
limited power of the monarchy.
Hence executive organs in England became subjected to the law of the parliament
and that was the beginning of the rule of law in England. In the United States
of America the doctrine of rule of law was first introduced in 1776 by the
constitutional lawyer Paine who believed America being a free country considers
Law as the king because in every country which is free law should be the king
and no one else.
Dicey's Concept of Rule of LawA.V Dicey is known to be the main exponent of the doctrine of rule of law
therefore it would be relevant to discuss his views on this topic. According to
Dicey's theory, rule of law has three pillars based on the concept that "a
government should be based on principles of law and not of men" and these are ;
firstly, Supremacy of Law that signifies that law rules over all people
including the persons administering the law.
According to Dicey the absolute
supremacy of the law as opposed to the arbitrary power of the government is what
constitutes the rule of law. It implies that a person cannot be punished by the
government merely by its own fiat but only according to the established law.
Further, Dicey asserted that discretion has no place where there is law as
discretion is a link to arbitrariness that jeopardizes the legal freedom of the
Secondly, Equality before the Law which implies that every man
irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court. According to
him, special law and special courts are a threat to the principles of equality
and that there should be the same set of laws for all the people along with
being adjudicated by the same civil courts.
Lastly, Predominance of Legal Spirit
which equates to the fact that there should be an enforcing authority. He
believed that the courts are the enforcer of the rule of law and hence it should
be free from impartiality and external influence. Further, courts of law and not
the written constitution are the ultimate protector of an individual's
fundamental rights. In substance, Dicey's emphasis, on the whole, in his
enunciation of rule of law is on the absence of arbitrary power, equality before
law, and legal protection to human rights.
Exceptions to Rule of LawIn order to cope up with the need of practical government, a number of
exceptions have been engrafted on these ideals of rule of law provided by Dicey
in modern democratic countries. Nevertheless even after incorporating certain
exceptions the basic ideas of rule of law are still preserved and promoted. In
India, Dicey's concept of rule of law cannot be said to be followed in a strict
sense, there are certain exceptions provided under the Indian Constitution and
Firstly, the existence of wide discretionary power to the executive.
The President and the Governor are given wide discretionary power in relation to
certain matters under the Indian Constitution. For instance, under Article
72 and Article 161, the President and the Governor respectively have a
prerogative to grant pardons or reprieves of punishment or commute the sentence
of any person convicted of any offence. Also, Article 85 provides the President
with discretion in relation to the prorogation of either house of the parliament
and the dissolution of the Lok Sabha. Secondly, immunities and privileges
extended to the public officials.
Under the Indian constitution equality before
law doesn't mean that the power of a private citizen should be the same as a
public official. Public officials like ministers, public officers have
immunities and privileges which ordinary citizens don't have. For instance, no
criminal proceedings whatsoever can be instituted against the President or
Governor of state, while he is in office or no civil proceedings in which relief
is claimed can be filed against the President or Governor except after an
expiration of a two month notice that is served on him.
Rule of Law as reflected in the Indian ConstitutionRule of law is nowhere explicitly mentioned in the Indian constitution though
the Indian courts refer to this phrase in a variety of its judgements. The maxim
'The King can do no wrong' has no application in India and all public
authorities are made subject to jurisdiction of ordinary law courts and to the
same sets of laws. In India, the Constitution is the law of the land and
prevails over the three organs and they have to act according to the principles
enshrined in the Constitution.
Article 14 guarantees the right to equality before law and equal protection of
law with an objective of achieving equality, liberty and justice. Further,
Article 15, 16, 23 further strengthened the ideal of equality by the
incorporation of protective discrimination as a means of ensuring equality
amongst equals. Also, Article 13 of the Indian Constitution is another example
which upheld the doctrine of Rule of Law by putting down that the "laws''
defined under Article 13 as rules, regulations, bye-laws and ordinances can be
struck down if they are contrary to the Constitution of India.
In Kesavananda Bharati v. State of Kerala, the Supreme Court held that Rule of
Law was a basic feature of the Constitution. Though the Supreme Court upheld the
amending power of the Parliament which extends to every Article it has limited
the power by providing that such power cannot be used in amending the basic
feature of the Constitution.
Further, in the case of Maneka Gandhi v. Union of
India the Supreme court in clear words observed that Article 14 strikes at
arbitrariness in state actions and ensures fairness and equality in
treatment. Article 21 also postulates that no person shall be deprived of his
life and liberty except by the procedure established by law, thus making the law
supreme. Such right also guarantees that no person is convicted except for the
violation of law which is in force at the time of commission of an offence and
is not prosecuted for the same offence twice.
Another significant derivative of rule of law is judicial review. Judicial
review is the essential part of the rule of law. It not only protects the
constitutional principles but also checks administrative actions and its
legality as All actions of the state authorities are subject to judicial review
and accountable to the courts for their reasonableness. The Indian constitution
has also provided adequate provision for the independence of judiciary, in terms
of tenure and appointment of judges and privileges given to them for their
actions in the judicial capacity, as it is the guardian of the constitution and
fundamental rights of the citizens.
It is therefore clear that there has been a constant alteration and
modifications in the concept of Rule of Law to suit the need of the present
scenario. A study of Kesavananda Bharati Case and other Habeas corpus cases
provides a distribution of Indian Judicial thought on the conception of the rule
of law which has evolved well over a quarter century.
The Concept of Rule of Law
has been given a new dimension by the liberal interpretation of the Supreme
Court of India as it today envisages not arbitrary power but controlled power.
It also extends to creating conditions in which the dignity of an individual
should be given priority including socio-economic, cultural and developmental
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