Introduction and Background

The term “Rule of Law” is derived from the French phrase ‘La Principe de
Legalite’ (the principle of legality) which refers to a government based on
principles of law and justice as opposed to the arbitrariness of a ruler.  The
concept of Rule of Law in its most fundamental sense is the foundation upon
which modern democratic society is founded and seeks to establish. The
principle of Rule of Law vests in a state that is governed by laws and not by the
arbitrary actions of men. The Rule of Law is a crucial component in a list of
items that make up contemporary political ideals; other items in this list include
democracy, human rights, and the principles of the free-market economy. [1]

“Rule of Law symbolizes an enlightened civilized society’s efforts and quest to

combine that degree of liberty without which law is tyranny with that degree of
law without which liberty becomes license.”[2]

Origin
The genesis of the Rule of Law can be dated back to the 13 th century A.D. when
Henry de Bracton, a judge in the reign of Henry III said that the King ought to
be subject to God and law as it is the law which has made him King however, he
did not use the phrase Rule of Law, therefore the credit of originating the
concept of Rule of Law has been bestowed upon Edward Coke who said that the
king must be under God and law and thus vindicated the supremacy of law over
the pretensions of the executives.

But a detailed analysis of the concept of Rule of Law was done by Professor A.V.
Dicey who in his book “Introduction to the Study of the Law of the
Constitution” published in the year 1885 tried developing the concept of Rule
of Law. According to Dicey no man is punishable or can be lawfully made to
suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary Courts of the land [3]. He advocated
the fact that law is the supreme and not much discretionary powers should be
vested in the executives as where there is too much concentration of power
there is scope of arbitrariness i.e. misuse of power due to which the liberty is
violated.

Content

Dicey’s theory of Rule of Law consists of three

basic principles
(i) The supremacy of law– Dicey believed that Rule of Law stands for absolute
supremacy of law. No person, irrespective of his position whether he is a
common man or government authority is bound to obey the law. No one should
be punished except for the breach of law and that the alleged offence is proved
before the ordinary court following the due procedure.

(ii) Equality before law– It means the equal subjection of all class of people to
the law of the land administered by the ordinary courts. No man is above the
law and would be treated equally in the eyes of law irrespective of their
pedestal in life.
(iii) The predominance of Legal Spirit– The phrase legal spirit refers to the
spirit of justice. This concept advocates the principle that law should be
according to justice and not vice-versa. He was against providing rights such as
the right to personal liberty, freedom, etc. in the written constitution of the
country. The constitution is not the source but the consequence of the rights of
the individuals[4] thus these rights should be a result of the judicial decisions.

Criticism of Dicey’s Theory

Professor A. V. Dicey’s theory which was so acceptable to the penchant of
nineteenth-century individualism, has been a subject of critical inquiry in later
years. Several fallacies have been alleged by various academicians and theorists
in the findings and claims made by A.V. Dicey:

 W.Paton

He stated that the constitution of the UK as a result of political struggle and not
a result of logical deductions from the Rule of Law [5]. Dicey on the other hand
had stated that Rule of Law was in mind while framing the constitution of while
framing the constitution and this was why there was a preamble UK and that is
why there was a Preamble. This claim was vehemently opposed to by G.W.
Paton in the words:

“These are undoubtedly the characteristics of the past and are not logical
deductions from a rule of law. For law may have a varying content; it may
protect the subject against despotism or give the most ruthless power to a
tyrant. It is not enough for the democrat to demand a rule of law–everything
depends on the nature of that law. Every legal order which functions as a rule
of law; applies to the Nazi state as well as a democracy.”  [6]

 Wade and Forsyth

They advocate that there was no equality of law in  stricto sensu even in
England as there were many immunities given to the King following the principle
of Rex Non-Protest Peccare, ‘The King Can Do No Wrong’. Dicey was
criticized for turning a blind eye to the immunity so provided to the King and
stating the concept of equality before the law (which is indeed a major postulate
of rule of law) as being existent in England.

 W.I. Jennings

He criticized each of the three suggested meanings of Rule of Law as

propounded by Dicey in his book. [7]

The first meaning allocated to the Rule of Law was the supremacy of law i.e. law
as opposed to arbitrary power to exclude the existence of wide discretionary
powers on the part of the government. However Dicey failed to distinguish
between arbitrary and discretionary powers as even during Dicey’s period wide
discretionary powers were vested in public authorities. The legislative power of
the parliament also was exercised according to a discretion vested in the same.

Secondly, Dicey pointed out that every man is subjected to the ordinary laws of
the realm enforced in ordinary tribunals. Here Dr. Jennings drew our attention
to the increasing practice of vesting powers of adjudication in administrative
tribunals and boards and the immunity given to the public officers in the
exercise of their duties.
 Click Above

Thirdly, Dicey says that the general principles of the constitution in England are
the result of the ordinary laws of the land that is to say that they are a result of
judicial decisions. Dr. Jennings termed this as being an overstatement because
Dicey herein has concentrated his thinking to only special individual rights
namely freedom of speech etc. Whereas in reality, the most important principles
underlying the British Constitution are not judge-made at all. [8]

Development of Rule of Law in India

Constitutional provisions
In India, the concept of Rule of Law can be traced back to Upanishads. Its
traces can also be found in the epics like Mahabharata and Ramayana, Ten
Commandments, Dharma Chakra and other seminal documents. In modern
times there are no drafts in which Rule of Law is directly discussed or
mentioned. The Rule of Law as administered in India is interpreted to be
embodied within several provisions of the Constitution. The framers of our
Constitution were not only familiar with the postulates of Rule of Law as
propounded by Dicey but also as modified by its action in British India.
Constitution is the grundnorm of the country from which all other laws derive
their authority, thus acting subservient to it and upholding the postulates of
Rule of Law that is envisaged under the Constitution of India. Further Article
13(1) states that any law that is made by the legislature has to be made in
conformity with the Constitution failing which it will be declared invalid. [9] Thus
every law that is created has to be in line with the constitutional provisions. The
Preamble to our constitution incorporates the word justice, liberty and equality
which are a clear indicator of a just and fair system without any existent
disparity between the masses irrespective of their stature in life. The equality
before the law as enumerated by Dicey is incorporated in Article 14 of the
Constitution of India which lays down the principle of equality before law and
equal protection of laws[10]. The right to life and personal liberty which is the
basic human right is also guaranteed to every person by the constitution [11].