RULE OF LAW

PREAMBLE

• WE, THE PEOPLE OF INDIA, HAVING SOLEMNLY RESOLVED TO CONSTITUTE INDIA INTO A
[SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC] AND TO SECURE TO ALL ITS CITIZENS:
• JUSTICE, SOCIAL, ECONOMIC AND POLITICAL;
• LIBERTY OF THOUGHT, EXPRESSION, BELIEF, FAITH AND WORSHIP;
• EQUALITY OF STATUS AND OF OPPORTUNITY; AND TO PROMOTE AMONG THEM ALL;
• FRATERNITY ASSURING THE DIGNITY OF THE INDIVIDUAL AND THE [UNITY AND INTEGRITY OF THE
NATION];
• IN OUR CONSTITUENT ASSEMBLY THIS TWENTY- SIXTH DAY OF NOVEMBER, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
 INTRODUCTION

• MEANS SUPREMACY OF LAW OR PREDOMINANCE OF LAW.IT IS BASED ON THE

FOUNDATION OF VALUES.
• “LAW IS THE KING OF KINGS,… NOTHING CAN BE MIGHTIER THAN LAW, BY WHOSE
AID, … EVEN THE WEAK MAY PREVAIL OVER THE STRONG”.-VEDAS
 INTRODUCTION

• “RULE OF LAW IS PREFERABLE TO THAT OF AN INDIVIDUAL.”-ARISTOTLE

• RULERS AND THE RULED ARE EQUALLY SUBJECT TO LAW.
• “THE RULE OF LAW STANDS FOR THE VIEW THAT DECISIONS SHOULD BE MADE
BY THE APPLICATION OF KNOWN PRINCIPLES AND LAWS; IN GENERAL, SUCH
DECISIONS WILL BE PREDICTABLE AND THE CITIZEN WILL KNOW WHERE HE IS” -
FRANK COMMITTEE REPORT (U.K ).
• ENDORSED BY THE SUPREME COURT OF INDIA IN S.G. JAISINGHANI VS. UNION OF
INDIA AND OTHERS (VIDE AIR SC 1427).
 INTRODUCTION

• 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.
• IT WAS EXPOUNDED FOR THE FIRST TIME BY SRI EDWARD COKE, AND WAS DEVELOPED BY PROF.
A.V.DICEY IN HIS BOOK 'THE LAW OF THE CONSTITUTION' PUBLISHED IN 1885
• “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.”
• RULE OF LAW 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
RULE OF LAW CONTAINS THREE PRINCIPLES OR IT HAS THREE MEANINGS AS STATED
BELOW:
•SUPREMACY OF LAW: THIS IS THE FIRST PILLAR OF DICEY’S CONCEPT OF RULE OF LAW. IT
MEANS THAT THE 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. 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 FIAT BUT ONLY ACCORDING TO THE ESTABLISHED LAW.

FURTHER, DICEY ASSERTED THAT DISCRETION HAS NO PLACE WHERE THERE IS SUPREMACY
OF LAW. ACCORDING TO HIM DISCRETION IS A LINK TO ARBITRARINESS. DICEY SAYS THAT
WHEREVER THERE IS DISCRETION, THERE IS ROOM FOR ARBITRARINESS AND DISCRETIONARY
AUTHORITY ON THE PART OF THE GOVERNMENT TO JEOPARDIZE THE LEGAL FREEDOM OF THE
PEOPLE.
 DICEY’S RULE OF LAW

2. EQUALITY BEFORE LAW

THE SECOND IMPORTANT PILLAR OF DICEY’S CONCEPT OF RULE OF LAW IS
EQUALITY BEFORE LAW. IN OTHER WORDS, 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 IS A THREAT TO THE PRINCIPLES OF EQUALITY.
THEREFORE HE IS OF THE VIEW THAT THERE SHOULD BE THE SAME SET OF LAWS
FOR ALL THE PEOPLE AND SHOULD BE ADJUDICATED BY THE SAME CIVIL COURTS
 DICEY’S RULE OF LAW

3. PREDOMINANCE OF THE LEGAL SPIRIT

• THE THIRD PILLAR OF DICEY’S CONCEPT OF THE RULE OF LAW IS PREDOMINANCE OF
LEGAL SPIRIT. ACCORDING TO DICEY, 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. HE ASSERTED THAT THE COURTS OF LAW AND NOT THE
WRITTEN CONSTITUTION ARE THE ULTIMATE PROTECTOR OF AN INDIVIDUAL’S
FUNDAMENTALS.
 WHY RULE OF LAW?

• THE MOST IMPORTANT APPLICATION OF THE RULE OF LAW IS THE PRINCIPLE

THAT GOVERNMENTAL AUTHORITY IS LEGITIMATELY EXERCISED ONLY IN
ACCORDANCE WITH WRITTEN, PUBLICLY DISCLOSED LAWS ADOPTED AND
ENFORCED IN ACCORDANCE WITH ESTABLISHED PROCEDURAL STEPS THAT ARE
REFERRED TO AS DUE PROCESS. THE PRINCIPLE IS INTENDED TO BE A
SAFEGUARD AGAINST ARBITRARY GOVERNANCE, WHETHER BY A TOTALITARIAN
LEADER OR BY MOB RULE. THUS, THE RULE OF LAW IS HOSTILE BOTH TO
DICTATORSHIP AND TO ANARCHY
 RULE OF LAW UNDER INDIAN CONSTITUTION:

• THE PREAMBLE OF OUR CONSTITUTION CLEARLY SETS OUT THE PRINCIPLE OF

RULE OF LAW WHEN IT LAYS DOWN THE OBJECTIVES OF SOCIAL, ECONOMIC,
AND POLITICAL JUSTICE, EQUALITY OF STATUS AND OPPORTUNITY, AND
FRATERNITY AND DIGNITY OF INDIVIDUALS IN INDIA.
• PART III OF THE CONSTITUTION LAYS DOWN THE FUNDAMENTAL RIGHTS
GUARANTEED TO EVERY CITIZEN OF THE COUNTRY. THESE RIGHTS ARE
JUSTIFIABLE U/A 32 & 226 WHICH ENSURE THEM A PROTECTION FROM ANY
LEGISLATIVE OR EXECUTIVE ENCROACHMENTS.
 FOUNDATION OF RULE OF LAW

• BASED ON THE RESPECT FOR THE SUPREME VALUE OF HUMAN DIGNITY.

• DESIGNED TO PROTECT THE INDIVIDUAL AGAINST ARBITRARY EXERCISE OF
POWER, WHEREVER IT MAY BE FOUND.
• AIMED AT HARMONISING THE OPPOSING NOTIONS OF INDIVIDUAL LIBERTY AND
PUBLIC ORDER, PERSONAL FREEDOM AND SOCIAL SECURITY.
 BASIC PRINCIPLES OF RULE OF LAW …

• IT IS THE LAW AND NOT THE INDIVIDUAL OR GROUP OF INDIVIDUALS WHICH RULES OR
GOVERNS THE PEOPLE.
• LAW IS SUPREME, ABOVE EVERYTHING AND EVERYONE. NOBODY IS ABOVE LAW.
• EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAW.
• ALL ACTIONS MUST BE ACCORDING TO LAW AND NOT ACCORDING TO WHIM.
• EVERY PERSON, WHATEVER BE RANK AND CONDITION, IS SUBJECT TO THE ORDINARY LAW OF
THE NATION
• GOVT. MUST BE CONDUCTED WITHIN THE FRAMEWORK OF RECOGNISED RULES WHICH
RESTRICT DISCRETIONARY POWERS.
 BASIC PRINCIPLES..

• DISCRETIONARY POWERS SHOULD BE EXERCISED WITHIN REASONABLE LIMITS

SET BY LAW.
• NO PERSON SHOULD BE MADE TO SUFFER EXCEPT FOR A DISTINCT BREACH OF
LAW.
• RESPECT FOR LAW.
• ABSENCE OF ARBITRARY POWER.
 PRE- CONDITIONS FOR RULE OF LAW …

• REPRESENTATIVE AND RESPONSIBLE GOVERNMENT.

• GOVERNMENT CAPABLE OF MAINTAINING LAW AND ORDER.
• GOVERNMENT CAPABLE OF CREATING APPROPRIATE SOCIAL AND ECONOMIC CONDITIONS.
• ADEQUATE SAFEGUARDS AGAINST EXECUTIVE ENCROACHMENT AND ABUSE OF POWER.
• CERTAIN MINIMUM STANDARDS FOR LAW CONFORMING TO EMERGING SOCIAL STANDARDS.
• ABSENCE OF RETROACTIVE PENAL LAW.
• FAIR AND JUST PROCEDURE.
• SPEEDY TRIAL IN CRIMINAL CASES.
• EQUAL ACCESS TO LAW.
• LEGAL AID TO THE POOR.
 PRE CONDITIONS..

• SOUND LEGAL PROFESSION.

• INDEPENDENT &IMPARTIAL JUDICIARY
• AUTHORITY OF THE COURTS TO TEST ADMINISTRATIVE ACTIONS, BY THE
STANDARDS OF LEGALITY.
 RULE OF LAW IN JUDGEMENTS

• RULE OF LAW IS ONE OF THE BASIC FEATURES OF THE CONSTITUTION OF INDIA. (INDIRA GANDHI VS. RAJ NARAIN REPORTED IN
AIR SC 2299).
• IF THERE IS ONE PRINCIPLE THAT RUNS THROUGH THE ENTIRE FABRIC OF THE CONSTITUTION OF INDIA, IT IS THE PRINCIPLE OF
RULE OF LAW. (S.P. GUPTA VS. UNION OF INDIA, AIR SC 149)
• RULE OF LAW SMT. INDIRA NEHRU GANDHI V. RAJ NARAIN AIR 1975 SC 2299, “THE RULE OF LAW POSTULATES THE PERVASIVENESS
OF THE SPIRIT OF LAW THROUGHOUT THE WHOLE RANGE OF GOVERNMENT IN THE SENSE OF EXCLUDING ARBITRARY OFFICIAL
ACTION IN ANY SPHERE….IT IS AN EXPRESSION TO GIVE REALITY TO SOMETHING WHICH IS NOT READILY EXPRESSIBLE.”
• RULE OF LAW IT IS THE ESSENCE OF THE RULE OF LAW THAT EVERY AUTHORITY WITHIN THE STATE INCLUDING THE EXECUTIVE
GOVERNMENT SHOULD CONSIDER ITSELF BOUND BY AND OBEY THE LAW. [STATE OF BIHAR V. SONAWATI KUMARI, AIR 1961 SC 221]
• RULE OF LAW BACHAN SINGH V. STATE OF PUNJAB* POPULARLY KNOWN AS ‘DEATH PENALTY CASE’, “THE RULE OF LAW
PERMEATES THE ENTIRE FABRIC OF THE CONSTITUTION AND INDEED FORMS ONE OF ITS BASIC FEATURES. THE RULE OF LAW
EXCLUDES ARBITRARINESS, ITS POSTULATE IS ‘INTELLIGENCE WITHOUT PASSION’ AND REASON FREE FROM DESIRE. WHEREVER
WE FIND ARBITRARINESS OR UNREASONABLENESS, THERE IS DENIAL OF THE RULE OF LAW.”
 PRINCIPLES OF NATURAL JUSTICE

• THE IDEA OF NATURAL JUSTICE IS NOT PRESENT IN THE INDIAN CONSTITUTION.

HOWEVER, AUTHORITIES CONSIDER IT AN ELEMENT MANDATORY FOR THE
MANAGEMENT OF JUSTICE. IT IS AN IDEA OF USUAL LAW WHICH ORIGINATES
FROM “JUS NATURAL”, WHICH STANDS FOR THE LAW OF NATURE. IN SIMPLE
TERMS, PRINCIPLES OF NATURAL JUSTICE ESTABLISH THE DIFFERENCES
BETWEEN RIGHT AND WRONG.
 INDIAN CONSTITUTION AND PRINCIPLES OF
NATURAL JUSTICE

• AS ALREADY MENTIONED, THE INDIAN CONSTITUTION DOES NOT USE THE EXPRESSION ‘NATURAL JUSTICE’
ANYWHERE. HOWEVER, THE FOLLOWING PARTS OF THE CONSTITUTION WITH THEIR RESPECTIVE
EXPRESSIONS CONVEY THE IDEA OF NATURAL JUSTICE.
• PREAMBLE: ‘SOCIAL, ECONOMIC AND POLITICAL JUSTICE, LIBERTY OF BELIEF, THOUGHT, WORSHIP, AND
EQUALITY OF OPPORTUNITY AND STATUS
• ARTICLE 14: EQUAL PROTECTION OF THE LAW FOR ALL CITIZENS OF INDIA AND EQUALITY BEFORE THE LAW
• ARTICLE 21: RIGHT TO LIBERTY AND LIFE
• ARTICLE 22: PROVISION OF FAIR HEARING FOR AN ARRESTED PERSON
• ARTICLE 39-A: FREE LEGAL SERVICES FOR DISABLED AND INDIGNANT PEOPLE
• ARTICLE 311: CONSTITUTIONAL PROTECTION FOR CIVIL SERVANTS
• ARTICLE 32, 136, AND 226: CONSTITUTIONAL SOLUTIONS FOR VIOLATIONS OF FUNDAMENTAL RIGHTS
 TWO PRINCIPLES OF NATURAL JUSTICE

• THERE ARE MAINLY TWO PRINCIPLES OF NATURAL JUSTICE. THESE TWO

PRINCIPLES ARE:
• ‘NEMO JUDEX IN CAUSA SUA’. NO ONE SHOULD BE MADE A JUDGE IN HIS OWN
CAUSE, AND THE RULE AGAINST BIAS.
• ‘AUDI ALTERAM PARTEM’ MEANS TO HEAR THE OTHER PARTY, OR NO ONE
SHOULD BE CONDEMNED UNHEARD.