RULE OF LAW

Diksha Sharma
 Origin of Rule of Law
– The rule of law is an ancient ideal first discussed by Aristotle, a
Greek scholar, as a system of rules inherent in the natural
order.
– In England, Rule of law began sometimes around 1215 when
King John of England signed the Magna Carta of 1215.
– The signing of Magna Carta indicated the consent of the
Monarchy of England to be under the law and the law to be
supreme.
– This lead to conflict between the parliament and the monarchy
as both were struggling to be supreme authority.
– The conflict was resolved by making parliament supreme over
the monarchy .
– As Parliament started making the laws, it 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 modern sense, the most famous exponent of the
concept of rule of law was given by Prof. Albert Venn Dicey in
his book ‘THE LAW OF THE CONSTITUTION’ in respect to the
powers which the government must exercise in accordance to
the law.
• Rule of law consists of several basic principles which law and
policy makers, judges and law enforcement agencies 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. According to A.V.Dicey, Rule of Law means that no
man is above the law and that every person, whatever be his
rank or conditions, is subject to the jurisdiction of ordinary
courts.
• Dicey wrote “every official from the Prime Minister down to
constable or a Collector of taxes is under the same
responsibility for every act done without legal justification as
any other citizen”.
 Prof. Dicey’s three meanings of Rule of Law
• Absence of Arbitrary Power or Supremacy of the Law – It means
the absolute supremacy of law as opposed to the arbitrary power
of the Government. In other words a man should only be punished
for the distinct breach of law, and not for anything else. The person
cannot be punished by the government merely by its own arbitrary
order but only according to the procedure established by law.
• Equality before the law - In other words, every man irrespective of
his rank or position is subject to the ordinary law. Every one in
England whether he is an official of the state or private individuals,
is bound to obey the same law. Thus, public officials do not hold a
privileged position in Great Britain.
• The Constitution is the result of the ordinary law of the land - It
means that source of the right of individuals is not written
Constitution but the rules as defined and enforced by the Courts.
 Exceptions to the Rule of law
• In India, Dicey’s concept of rule of law cannot be said to be
followed in strict sense, there are certain exceptions provided
under the Indian Constitution and other laws. For example:
• First, equality before law does not mean that power of
private citizens are the same as powers of the public
officials. Thus a police officer has the powers of the private
citizens are the same as the powers of the public officials.
Thus, a police officer has the power to arrest while, as a
general rule no private person has this power. This is not the
violation of the rule of law. But the rule of law does require
that these powers should be clearly defined by law and that
the abuse of authority by public officers must be punished by
ordinary courts in the same manner as illegal acts committed
by private persons.
• Secondly, the rule of law does not prevent certain classes of
persons being subject to special rules. Such as members of
military forces are controlled by military laws.
• Article 361 affords an immunity to President and state
Governors. As they are not answerable to any Court for the
exercise and performance of those powers and duties.
• No criminal proceedings against the president or Governor in
any Court during his term of office. No process for the arrest
or imprisonment of the President or the Governor of state
shall be issued from any court during his term of office.
• Thirdly, Ministers and executive bodies are given very wide
discretionary powers by the statutes. A Minister may be
allowed the power ‘to act as he thinks fit’ . Such power is
sometimes abused. Also, police which are a part of the
executive are given wide power of arrest without warrant in
case of cognizable offences.
• A large number of legislation is passed in the form of
delegated Legislation i.e. rules, orders ort statutory
instruments made by ministers and other bodies and not
directly by Parliament.
END