Rule of Law by Dicey

Origin of Rule of Law

• The origins of the Rule of Law theory can be traced back to the
Ancient Romans during the formation of the first republic; it has
since been championed by several medieval thinkers in Europe
such as Hobbs, Locke and Rousseau through the social contract
theory.

• Indian philosophers such as Chanakya have also espoused the

rule of law theory in their own way, by maintaining that the King
should be governed by the word of law. The concept of Rule of Law
is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law.

• The expression 'Rule of Law' has been derived from the French
phrase 'la principle de legalite', i.e. a Government based on the
principles of law.
 Definition of Rule of Law
• According to Edward Coke , “Rule of Law
means:
A) Absence of arbitrary power on the part of the
Government.
B) No man is punishable or can be made to
suffer in body or good except for a distinct
breach of law established in the ordinary
legal manner before the ordinary courts of
the land.
• As per Prof. A.V.Dicey, “the rule of law means
the absolute supremacy or predominance of
the regular law as opposed to the influence
of arbitrary power and

• excludes the existence of arbitrariness or

even of wide discretionary authority on the
part of the government.” (The Law of the
Constitution)

• Dicey regarded rule of law as the bedrock of

the British Legal System: ‘this doctrine is
accepted in the constitutions of U.S.A. and
India.
 Dicey’s Rule of Law
According to Prof. Dicey, rules of law contains three principles,
or it has
three meanings as stated below:
1. Supremacy of Law : The First meaning of the Rule of Law
is that 'no man is punishable or can lawfully be 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.

2. Equality before Law : the Second meaning of the Rule of Law

is no man is above law.

3. Predominance of Legal Spirit: The third meaning of rule of

law is for the prevalence of the rule of law there
should be an enforcing authority and that authority
he found in the courts.
• He believed that the courts are the enforcer of
the rule of law and hence it should be free from
impartiality and external influence.
Independence of the judiciary is therefore an
important pillar for the existence of rule of law.

• The Rule of Law, in its most basic form, is the

principle that no one is above the law. The
rule follows logically from the idea that truth,
and therefore law, is based upon fundamental
principles which can be discovered, but which
cannot be created through an act of will.
 Critical Analysis of Dicey’s Rule of Law
Dicey’s concept of Rule of Law had its advantages
and disadvantages which are discussed as follows:
• Rule of Law imposed and helped in imbibing a sense of
restraint on administration. The government was
bound to work within the legal framework.

• Further, by stating that the law is supreme, he made

every law made by the legislature supreme, thus,
promoting parliamentary supremacy.

• All laws, public or private, are being administered by

the same set of independent and impartial judiciary.
This ensures adequate check on the other two organs.
• Nonetheless, on the other hand, Dicey completely
misunderstood the real nature of the French droit
administratif. He thought that this system was designed
to protect officials, but the later studies revealed that
in certain respects it was more effective in controlling
the administration than the common law system.

• The reality is that French Conseil d’ Etatis widely

admired and has served as model for other countries as
well as for court of justice for European communities.
He also did not realise the need for codification of laws,
which could lead to more discretion, thus hampering
Rule of Law.
 Exceptions to Rule of Law
• It order to cope up with the need of practical
government, number of exceptions have been
engrafted on these ideals of rule of law provided be
Dicey in modern democratic countries:

• e.g., there is a universal growth of broad discretionary

powers of the administration;

• many administrative tribunals have developed;

• the institution of preventive detention has now become

the normal feature in many democratic countries.

• Nevertheless, even after incorporating certain

exceptions the basic ideas of rule of law are still
preserved and promoted.
Rule of Law and Indian Constitution
• The Constitution of India provides that the
constitution shall be the supreme power in the
land and the legislative and the executive derive
their authority from the constitution. Any law
that is made by the legislature has to be in
conformity with the Constitution failing which it
will be declared invalid, this is provided for
under Article 13 (1).

• Article 21 provides a further check against

arbitrary executive action by stating that no
person shall be deprived of his life or liberty
except in accordance with the procedure
established by law.
• Article 14 ensures that all citizens are equal,
and that no person shall be discriminated on
the basis of sex, religion, race or place of
birth, finally it ensures that there is
separation of power between the three wings
of the government and the executive, and the
legislature have no influence on the judiciary.

• By these methods, the constitution fulfils all

the requirements of Dicey’s theory to be
recognized as a country following 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:
•Existence of wide discretionary power to the
executive-
President and governor of this state are given wide
discretionary power in relation to certain matters under
the Indian Constitution.
• Under Article 72 and 161, the president and the
governor respectively have a prerogative to grant
pardons, reprieves, respite or remissions of punishment
or to suspend, remit or  commute the sentence of any
person convicted of any offence.
• Article 85 provides the president with discretion in
relation to the prorogation of either house of the
parliament and the dissolution of the house of people.
• The governor on the other hand has discretion in
sending the report to the president under Article
356 of the constitution and in reserving bills for
consideration under Article 200.

• Police which are a part of the executive are given wide

power of arrest without warrant in case of cognizable
offences. Criminal courts in India have wide
discretionary power in providing sentences.

•Immunities and privileges-

Under Indian constitution equality before law doesn’t
mean that the power of a private citizen should be the
same as public official. Public officials like ministers, local
authorities, public officers and others of the like have
many powers, immunities and privileges which ordinary
citizens don’t have. For example-
1. The President/Governor is not answerable to the court
of law in discharge of his executive functions.

2. No criminal proceedings whatsoever can be instituted

against President or Governor of state, while he is in
office.

3. No civil proceedings in which relief is claimed can be

filed against the President or Governor except after an
expiration of a 2 month notice that is served on him.

4. Under International laws, the visiting heads of state,

heads of government, ministers, officials and foreign
diplomats who are posted in the country are not
subjected to jurisdiction of local courts in discharge of
their official functions.
 Rule of Law and Indian Judiciary
• The Indian Judiciary has played an instrumental role in
shaping Rule of Law in India. By adopting a positive
approach and dynamically interpreting the constitutional
provisions, the courts have ensured that the Rule of Law and
respect for citizens’ rights do not remain only on paper but it
is also avalaible in the society.
• A.K Kraipak V Union of India AIR (1969) 2 SCC 262
• Supreme Court on the question whether the principle of
natural justice can be followed in administrative function
held that every instrumentalities of the state is bound by the
doctrine of rule of law and is charged with the duty of
discharging their functions in a just, fair and reasonable
manner, which forms the basic principle of Rule of Law
without which the concept of Rule of Law has no validity. The
rule of law is applicable to the entire field of the
administration as every organ of the state is regulated by the
rule of law. 
• Indra Nehru Gandhi V Raj Narayan AIR 1975 865

• In this case the 39th amendment to the Constitution

was challenged which has placed the election of
President, Prime Minister, Vice-President and the
Speaker of Lok Sabha unjustifiable in the courts of law.
Holding the amendment as unconstitutional chief
justice Ray found the amendment as violative of the
basic structure of the Constitution i.e., Rule of Law.

• Rule of Law being anti thesis to arbitrariness does not

empower the parliament to pass a retrospective law
validating an invalid election. Such exercise of power is
opposed to the basic principles of Rule of Law.
• In Bachhan Singh v. State of Punjab,AIR
1980 SC 898
• it was held that the Rule of Law has three
basic and fundamental assumptions. They
are-
• 1) There must be independent judiciary to
protect the citizens against excesses of
executive and legislative power.

• 2) Even in the hands of the democratically

elected legislature, there should not be
unfettered legislative power; and

• 3)Law making must be essentially in the

hands of a democratically elected
legislature;