Introduction:
The concept of rule of law had been in curtains and mist for a long time. It was not until A.V Dicey’s definition in 1885, that we begin to understand the concept. Professor Dicey had broken down rule of Law into three simple concepts which were further needed to be understood in detail. The development of rule of law must be understood and, after such understanding, we may utilize it in the legal system of different countries such as India.
The following article would show the emergence of the Rule of Law and its development by AV Dicey. It will further analyze the Indian legal system in consonance of Rule of Law and how it has evolved, since the time it was embedded in the basic structure of the constitution, through judicial decisions.
Rule of Law
The term “rule of law” originates from the French phrase “La Principe de Legalite” which means the principle of legality, which infers that there is a government based solely on principles of law and justice, untouched by human biases and greed, therefore, sans arbitrariness of a ruler. Such is a utopian government, which exists to uphold the law and order and is itself ideal and an idol of justice. More aptly, it is the concept that should lay down as the foundation of every modern democratic society and is an aim which many countries, democratic or else, still seeks to establish. I would not be going extreme in saying that rule of law still eludes many so-called democratic countries in the world.
The rule of law must exist in a democratic system to ensure that the country functions in consonance with the ideals of justice and law rather than have chaotic decision-making on the whims of men. The concept is a crucial variable in achieving the aims of political ideals. It was first used by Edward Coke, who said that the King is under God and law, and therefore establishing the supremacy of Law over man. Ergo, a country which ensures that ensures the rule of law is the grundnorm[1] of the country, so is to say the basic law, from which we may derive authority of our actions as a government of the state. In such a concept the King or the government is not the law but rather, the law is the king.[2]
The theory of rule of law is majorly applied in the field of constitutional law and administrative law, both of which deals with the functioning of the country’s system, rights, and good governance.
Dicey’s Rule of Law
Professor A. V Dicey had formulated three main pillars of rule of law. These principles of Supremacy of Law, Equality Before Law, and Predominance of Legal Spirit, according to Dicey, were the core values of Rule of Law.
Supremacy of Law
Professor Dicey put forward the first limb of rule of law as “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. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”[3]. This statement and the principle it lays down required that the laws under which people are governed and punished should be created, regulated, and amended in a licit manner rather than on the wish of those who believe that they hold more power than law and law after all is just a puppet to legitimize the rule of powerful and conceited. Rule of law believes in the dominance of law in everything, from the creation of a department to footpath laws. It further determines that only the legal process could punish the guilt, a process with which no one should be allowed to interfere.
The word “arbitrary” employed in the second sentence of the principle, however, faces much more critique in the Supremacy of Law principle. This word poses that there might be a legitimately passed law, created in consonance of authority and rule of law, yet it could still be so vague or unclear that it is termed as arbitrary. There could naturally be instances where the law is thought to be infringing certain fundamental rights or is too excessive and quick in punishment. Here the law would be arbitrary, such a sense of arbitrariness is independent of whether the substance of the law is just or unjust.[4] Dicey contented that wherever there is discretion in creation, there will be scope for arbitrariness.[5] Ergo, it was held that the judiciary is more competent in regarding the law as just or unjust and must have the discretion to amend arbitrary laws.
Equality before Law
The Dicey second principle is structured in the following statement: “every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”[6]
This formulation of rule of law is much more concerned about equality before the law. As the words imply, it means that every person, regardless of creed, gender, class, or status, would be subjected to laws equally. It is essentially, in my view, a personification of the popular justice idol i.e., Roman Goddess Justitia, which was later symbolized as the blindfold Lady Justice. The Lady symbolizes that everyone is equal before the law, and all shall be treated equally irrespective of their social characteristics. Such principle is a vital part of the Justice system because without equality the guarantee of justice in itself would be rendered meaningless, where the weaker sections are unable to enjoy the rights enshrined in legal texts, there is no justice at all.[7]
The Predominance of Legal Spirit
The predominance of legal spirit is a belief principle of dicey that it was just the above two principles were insufficient for achieving the aim of rule of law. There must be an enforcing authority that implements the law nationwide and without hesitation of human nature. Dicey speculated that the courts were these warriors of justice which fits the description of the third principle. The idea was that the judiciary is the guardian of laws. Dicey was against the creation of rights such as personal liberty and freedom etc., in a written constitution because he insisted that the constitution is a mere compilation of the rights, originating as a consequence of the right of individuals,[8] and not the source itself. Hence, these rights should be considered as a result of case laws.
Development of Dicey’s Rule of Law in India
India’s roots of rule of law come from the absorption of the common law system of justice from the British Jurisprudence. However, the concept itself is an ancient idea in India, which could be traced back to the writings of Upanishads and Mahabharat and can be seen in the actions of Chanakya. It is just that the concept of rule of law was more desirable and thus is the one imbued in the Indian Legal System. The Constitution of India shows the intention to be governed by the Rule of Law while declaring that the constitution is the grundnorm and gives authority and validity to the administrative and executive decisions.
Rule of Law & Judiciary
The judicial decision has been crucial in the development of the Rule of Law, as mentioned in Dicey’s third principle. The question of whether the rule of law is the part of the constitution apart from article 21 was raised in the case of ADM Jabalpur v. Shivkanth Shukla[9], and even though the question was answered in negation, Khanna J. observed that:
“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies”[10]
This Habeas Corpus case was important as it dealt with the horrors of emergency as the fundamental’s rights were suspended during the said emergency.
However, the first case which raised the question of the existence of Rule of Law in the Indian Constitution was in Shankari Prasad v. Union of India[11]where the question arose that “whether the fundamental rights can be amended?”. However, the question remained unsettled and in dark until the landmark case of Kesavananda Bharti v. State of Kerala[12] where rule of law was considered as a part of the basic structure of the Constitution and therefore, it could not be abrogated or destroyed even by the parliament, establishing the supremacy of law.
The judicial decisions have upheld the limbs of rule of law in numerous cases and in doing so have become the guardian of the rule of laws while ruling against arbitrariness.
In Chief Settlement Commissioner, Punjab v. Om Prakash[13], the Apex court observed that in our constitutional system the core feature is the concept of rule of law, therefore the law courts must test all administrative actions through the standards of legality. And if an action is held to be arbitrary and unjust, whether executive or administrative, such action should be halted immediately. Later the position was changed a little in Satvant Singh Sawhney v. D Ramarathanana[14] observing that if an executive action operates in prejudice of any person, it must be supported by some legislative authority.
Furthermore, on the independence of the judiciary, an aspect of the first principle of Dicey’s rule of law, the court in the case of S.P Sampath Kumar v. Union of India[15]held that the lives of people and the state functions are all governed by the judicial decisions of apex courts. Therefore, the judicial review plays a crucial role in safeguarding law and order, and hence, the provisions which curtail the power of the courts would be held against rule of law. The same position was reiterated in S.P. Sampath Kumar v. Union of India.[16]
Rule of Law & Constitution
The constitution in itself imbues the principles of the Rule of Law. The beginning itself, i.e., the preamble, enshrines the basic ideas of equality, liberty, and sovereignty. The fundamental rights such as that of Article 14 echo the equality before law principle of Dicey’s Rule of Law and similarly, Article 21 and 19 also contain within themselves the idea of Rule of Law. The so-called Golden Triangle Articles are therefore a formation created with the Rule of Law in mind.
In Union of India v. President, Madras Bar Association[17] stated that the Rule of Law is made of many facets and one of the crucial ones is that the disputes on matters of law must be heard by an impartial judge who is independent and is free from influence. The power of Judicial review is provided to the judiciary through articles 32 and 226.
In the words of R.S Pathak, J. of the Supreme Court that: “It must be not be forgotten that our entire constitutional system is based on the rule of law, and in any system designed in this way, it is not possible to conceive of legitimate power which is arbitrary in nature and works beyond the boundary of reason.”[18]
Conclusion
The Rule of Law has always been there in India; however, it emerged as a modern concept and was imbued in our Constitution as the A.V Dicey’s principles of Rule of Law. The concept is most crucial in the creation of a utopian world which the founders of the Indian Constitution imagined. The concept is there to ensure that the ideals of natural justice, equality, and law above all, are not squandered away by those who are drunk on power.
The Rule of law has had a long road of development through judicial decisions and has always emerged better than before. Such is the power of the Judiciary, which itself continues to evolve and continues to perfect the system in order to provide its citizen with equality and justice in a more accessible and more refined way. The Rule of Law further helps in legitimizing the Latin maxim of lex malla lex nulla i.e., a bad law is no law.
References:
[1] Mridushri Swarup, Kelsen’s Theory of Grundnorm, Manupatra (2014), http://manupatra.com/roundup/330/Articles/Article%201.pdf.
[2] Thomas Paine, Common Sense, (W. & T. Bradford 1994).
[3] A.V. Dicey, Introduction to The Study of The Law of The Constitution, (10th edition, 1985).
[4] Lord’s Select Committee on Constitution, Paper by Professor Paul Craig: The Rule of Law, House of Lords, Sixth Report (July 2007), https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm.
[5] Ananya Jain, Rule of Law and its Application in the Indian Polity, 1 IJLMH, 2018, at 1, 2.
[6] 2 Alok Kumar Yadav, Rule of Law, International Journal of Law and Legal Jurisprudence Studies, http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf.
[7] N V Ramana, Rule of Law vs Rule by Law, The Indian Express (Jul. 2, 2021, 8:21 AM), https://indianexpress.com/article/opinion/columns/n-v-ramana-pd-desai-memorial-lecture-indian-judiciary-state-rule-of-law-constitution-7385031/.
[8] A.V. Dicey, Introduction to the study of the law of the constitution, (10th edition, 1985).
[9] AIR 1976 SC 1207.
[10] Id at para 154.
[11] AIR 1951 SC 455.
[12] AIR 1973 SC 1461.
[13] 1969 AIR 33.
[14] AIR 1967 SC 1836.
[15] AIR 1989 SCR (3) 316.
[16] AIR 1987 SCR (3) 233
[17] Writ Petition No. 1072 of 2013,
[18] Suman Gupta and Ors. Etc v. State of J & K and Ors., AIR 1983 SC 1235.
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