Explain the concept of ‘Rule of law’ propounded by Prof. A.V.

Dicey drawing attention to its

criticism in modern times. Is the legislative arbitrariness subject to Rule of law? Give
reasons for your answer.

INTRODUCTION
The ‘rule of law’ is an ephemeral phrase which is used to mean a variety of things according
to the context in which it is being used. It may be used to mean that people must act according
to the law, ie that the law is supreme and must be obeyed. In this context it is used to suggest
that citizens must act lawfully and, should they want to effect change, they must operate
through the normal democratic processes. In particular, this use of the ‘rule of law’ denies
any legitimacy to acts of terrorism. In the context of administrative law, the principle also
requires that government acts according to law.
The rule of law also demands that the law itself fulfils minimum standards. It is this concept
with which we are concerned in the context of judicial review where the ‘rule of law’ assumes
meanings encompassing principles of accountability, equality, the absence of arbitrariness
and the presence of fairness in decision-making.
Dicey, writing in 1885, identified the rule of law as one of two features which have at all times
since the Norman Conquest characterised the political institutions of England, the other of
these features being the omnipotence or undisputed supremacy of the central government
(see AV Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn, 1959,
Macmillan, at pp 183–84). By ‘rule of law’ Dicey meant ‘the security given under the English
constitution to the rights of individuals looked at from various points of view’. He identified
the rule of law, as a characteristic of the English constitution, as including at least three
distinct though kindred concepts:
• ‘It means, in the first place, the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of the government.
Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a
breach of law, but he can be punished for nothing else.’
In this context, Dicey noted the case of Entick v Carrington (1765)
• ‘... not only that with us no man is above the law, but (what is a different thing) that here
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.’
‘It means, again, equality before the law, or the equal subjection of all classes to the ordinary
law administered by the ordinary law courts ...’
Dicey was anxious to draw a comparison with the French system of droit administratif and
tribunaux administratifs whereby complaints against the actions of the administration are
dealt with by specially constituted courts. This system (which he appears to have
misunderstood) he perceived as being weighted in favour of the administration.
• ‘... the constitution is pervaded by the rule of law on the ground that the general principles
of the constitution ... are with us the result of judicial decisions ... Our constitution, in short,
is a judge made constitution ... There is ... an absence of those declarations or definitions of
rights so dear to foreign constitutionalists.’
This difference was noted by Dicey to be one of form. However, he perceived the advantage
of the English model to be that it ensured that where a right existed it was accompanied by a
remedy – ubi ius ibi remedium.
Yet another meaning given to the rule of law is that laws should be prospective, open, clear
and stable (see Raz, ‘The Rule of Law and its Virtue’ (1977) 93 LQR 195).
The principles of accountability and the absence of wide discretionary power on the part of
government are of particular significance in administrative law.

The modern concept of the Rule of Law is fairly wide and, therefore, sets up an idea for
government to achieve. This concept was developed by the International Commission of
Jurists, known as Delhi Declaration, 1959, which was later on confirmed at Lagos in 1961.
According to this formulation, 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.
During the last few years the Supreme Court in India has developed some fine principles of
Third World jurisprudence. Developing the same new constitutionalism further, the Apex
Court in Veena Seth v. State (AIR 1983 SC 339) of Bihar extended the reach of the Rule of Law
to the poor and the downtrodden, the ignorant and the illiterate, who constitute the bulk of
humanity in India, when it ruled that the Rule of Law does not exist merely for those who
have the means to fight for their rights and very often do so for the perpetuation of the status
quo, which protects and preserves their dominance and permits them to exploit a large
section of the community. The opportunity for this ruling was provided by a letter written by
the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to unjustified and
illegal detention of certain prisoners in jail for almost two or three decades.
Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional Courts in India to establish rule-of-law society, which implies that no matter
how high a person, may be the law is always above him. Court is also trying to identify the
concept of rule of law with human rights of the people. The Court is developing techniques
by which it can force the government not only to submit to the law but also to create
conditions where people can develop capacities to exercise their rights properly and
meaningfully. The public administration is responsible for effective implementation of rule of
law and constitutional commands, which effectuate fairly the objective standards laid down
by law. Every public servant is a trustee of the society and is accountable for due effectuation
of constitutional goals. This makes the concept of rule of law highly relevant to our context.