Diceys Rule of Law and Its relation to the Indian Context

- Gayatri Misra BBA LLB 4th Semester A3221512043

Constitution of India: Article 14. Equality before law. The State shall not deny to any person equality before law or equal protection of laws within the territory of India. Diceys Rule of Law Dicey said: It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law courts; the rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the administrative law (droit administratif) or the administrative tribunals (tribunaux administratifs) of France. The notion which lies at the bottom of the administrative law known to foreign countries is, that affairs or disputes in which the Government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.; "English men are ruled by the law, and by law alone; a man with us maybe punished for a breach of law, but can be punished for nothing else."1 The term Rule of Law of derived from French phase la principe de legalite which means the principle of legality. It refers to a government based on principles of law and not of man. Edward

Lectures on Admisistrative law, CK Takwani, Pg. 16

Coke

is

said

to

be

the

originator

of

this

concept.2

One of the basic principles of English constitution is the rule of law. This doctrine is accepted in the constitution of U.S,A and also in the constitution of India. The entire bases of administrative law is the doctrine of the rule of law. According to Dicey rule of law is one of the fundamental principles of English legal system, in the book "the law and constitution he attributed the following 3 meaning to the said doctrine:

1. Supremacy of law, 2. Equality before law, and 3. Predominance of legal spirit. Supremacy of law

Explaining the first principle, Dicey states that the rule of law means the absolute supremacy or dominance of regular law as opposed to the influence of arbitrary power or wide discretionary authority. According to English law, men were ruled by the law and law alone. In his words whenever there is discreation, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom and a part of it subjects Equality before law

Explaining the second principle of the rule of law, dicey says that must be equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary courts. He criticised the French legal system of droit administratif in which there were separate administrative tribunals for deciding cases between the officials of the state and the citizen. According to him, exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality.

2 3

Growth of Administrative Law in India, Mrinalini Sinigh Lectures on Admisistrative law, CK Takwani, Pg. 16

Predominance of legal spirit Explaining the third principle, Dicey stated that in many countries rights like to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution, in the English land it is not so. Thus, dicey emphasized role of the court of law as guarantors of liberty and suggested that the right would be secured quickly if they were enforceable in the court of law by mere declaration of those rights in a document, as in the latter case They can be curtailed or trampled upon.

Rule of law in Indian Context The system of administrative legislation and adjudication has existed in India from a very long time. The Britishers came to India for trade so the primary object of British administration was to maximise profit. As the Britishers gained control over India the efficiency of administration became the basic necessity to fulfil its basic purpose. The executive at that time had overriding powers in the matters of justice. The concept of Rule of Law is not well defined legal concept. In the case of A.D.M Jabalpur v. Shivkant Shukla 4 attempt was made to challenge the administrative order during emergency on the ground that it violates the principle of Rule of Law. Though the contention did not succeed but this case made it clear that Rule of Law can be used as a legal concept. In Kesavananda Bharti v. State of Kerala5 the Rule of Law was considered the basic structure of Indian constitution. In Indira Nehru Gandhi v. Raj Narain6 judges held that Article 329A offends the concept of Rule of Law. The Court in case of Som Raj v. State of Haryana7 observed that the absence of arbitrary power is the first postulate of Rule of Law. The modern concept of Rule of Law is fairly wide. This concept was developed by International Commission of Jurists. This concept implies that the function of government in the society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. During the last few years the Supreme Court of India has developed some fine principles of third world jurisprudence. This could be seen by the extension of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate who form the bulk of humanity in India. This ruling was provided by the court in response to a letter drawing attention to unjustified and illegal detention of certain prisoners in jail for almost two to three decades in the case of Veena Seth v. State of Bihar.8 The Courts in India have established Rule of Law society. The public administration has effectively implemented rule of law. Today the administrative process has grown so much that
4 5

(1976) 2 SCC 521 (1973) 4 SCC 225 6 AIR 1975 SC 2299 7 (1990) 2 SCC 653 8 (1982) 2 SCC 583

we are not governed but administered. The negative side of it is that respect for law degenerates into legalism which from its very rigidity works as an injury to the nation. Criticism Diceys Rule of Law has been criticised by eminent writers. The following are the criticisms to Diceys Rule of Law which would be generally accepted today. (a) Dicey wrote in the hey-day of laissez-faire and he dealt with the rights of individuals not with the powers of the administration. (b) Diceys Rule of Law, which was founded on the separation of powers, fixed public attention on administrative law and delegated legislation. Dicey did not deal with the administration as such, and he failed to distinguish between discretion given to public officials by statute and the arbitrary discretion at one time claimed by the King. (c) In his Law of the Constitution, Dicey did not refer to the prerogative writs of mandamus, prohibition and certiorari by which superior courts exercised control over administrative action and adjudication. (d) Diceys picture of the Englishmen protected by the Rule of Law, and the Frenchmen deprived of that protection because public authorities in France enjoyed privileges and immunities is now recognised as a distorted picture. (e) A leading modern textbook on English Constitutional law observes that if it is contrary to the Rule of Law that discretionary authority should be given to government departments or public officers, then the Rule of Law is inapplicable to any modern Constitution