RULE OF LAW

Submitted By

Kapil Sehrawat

Roll No.26, Ba. LLB. (Hons.) (Regular)

Faculty of law
Jamia Millia islamia.
In
November, 2018

Under the guidance of

Dr. Mohammad Asad Malik

Associate Professor

Faculty of Law,
Jamia Millia Islamia,
New Delhi-110025.
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Mohammad Asad
Malik who gave me the golden opportunity to do this wonderful project on the topic Rule of
Law, which also helped me in doing a lot of Research and i came to know about so many
new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped me a lot in finalizing
this project within the limited time frame

Kapil Sehrawat.

B. A. LLB. (Hons.) (Regular)

Roll No 26.
 INDEX

1. Introduction 1

2. Wade’s Interpretation of Rule of Law 2

3. Dicey’s Formulation of Rule of Law 3

4. Evaluation of Dicey’s Concept 6

5. Modern Meaning of Rule of Law 7

6. Formal and Ideological Meaning of “Rule of Law” 8

7. Rule of Law in India 8

8. Rule of Law vis-a-vis Administrative Law 12

1.GENERAL
The term 'rule of law* means the principled of legality which refers to a government
based on principles of and not of men. In this sense the concept of the rule of law is
opposed to arbitrary powers.

Rule of law is one of the basic principles of the English Constitution: This doctrine
has been enshrined in the Constitution of U.S.A. and in the Constitution of India as
well. The entire basis of administrative law is the concept of rule of law. Sir Edward
Coke, The Chief Justice in James I's reign is said to be the originator, of this great
principled. In a battle against the King, he succeeded in maintaining that the King
must be under the God and the law and thus vindicated the supremacy of law
against the executive. Dicey developed, this doctrine of Coke in his classic book,
'The Law and the Constitution' published in the year 1885.

RULE OF LAW- A STATE OF AFFAIRS

The expression "rule of law" explains a state of affairs in which everything must be
done according to law. It is a state of affairs in which there are legal barriers to
governmental arbitrariness and there are available legal safeguards for the
protection of the individuals. In simple words, it is the reverse of tyranny, the
antithesis of the rule of anarchy and fear.1

Garner2 holds that the expression "Rule of Law" is often used simply to describe the
state of affairs in a country where, in main, the law is observed and order is kept. It is
thus synonymous with "law and order".

The expression "Rule of Laio" is said to have been derived from the French maxim
"la principe de legalite", which broadly means "government based on principles of
law and not of men". "Ride of Law" in this sense, is a concept opposed to arbitrary or
tyrannical power.

RULE OF LAW- GOVERNMENT UNDER THE LAW

It signifies that nobody should be deprived of his rights and liberties by - any
administrative action; that the administration should perform its functions according

1
Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57.
2
Administrative Law, 1983, 9.

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to law and not arbitrarily; that the supremacy of the Courts be upheld, to fully secure
the judicial control of Administrative Law.
According to Prof. Goodhart,3 the essence of "Rule of law" is that "public officers are
governed by law, which limits their powers. It means government under law—the
supremacy of law over the government is distinct from government by law—the mere
supremacy of law in society generally which would apply also, to totalitarian States."
To put it in short, "Rule of Law" implies a state of affairs, where there is absence of
arbitrary powers, where law is observed by everyone including the Government and
its officers, where the action of the administration is backed by law, where every man
is equal before law and assured that he will not be punished except for violation of
law, where cases relating to violation of law or disputes as to rights and duties, are
decided by impartial and independent Courts or Tribunals.4

2.WADE’S INTERPRETATION OF RULE OF LAW

Wade & Forsyth,5 assign four meanings to "rule of law". Its primary meaning is that
"everything must be done according to law". It requires that every government
authority must be able to justify its action as authorized by law. And, that the affected
person may always resort to the Court of law and if the legal pedigree is not found to
be perfectly in order, the Court will invalidate the act. It is called the principle of legality.

Therefore, "rule of law" means that "government should be conducted within a

framework of recognized rules and principles which restrict discretionary power." It is
the secondary meaning of the rule of law, say the learned writers. They refer to
Edward Coke's description of "rule of law" as "the golden and straight metwand of law, as
opposed to the uncertain and crooked cord of discretion."6

The third meaning of "rule of law", a corollary drawn from its first meaning, Wade &
Forsyth say, is that disputes as to the legality of acts of government, are to be
decided by Judges who are independent of the Executive. The right to carry a
dispute with the government before the ordinary Courts, manned by Judges of the

3
Prof. A.L. Goodhart, “The Rule of Law and Absolute Sovereignty”, 106 UPLR, (1958), 943.
4
See also K.C. Davis, supra, note 11.
5
Administrative Law, 2007, 20-24.
6
Sir Edward Coke was the Chief Justice in the Court of James I. He was credited with being the originator of the
concept of “rule of law”.

2
 highest independence, is, according to the learned writers, an important element in the
Anglo-American concept of the rule of law.7

The law should be even-handed between the Government and citizen. That, the
Government should not enjoy unnecessary privileges or exemptions from ordinary
law. That, "all public authorities", in principle, "should be subject to all normal legal
duties and liabilities which are not inconsistent with their governmental functions". It
is the fourth meaning assigned to the concept of "rule of law."8

Besides the above four meanings of "rule of law" which may be said to be the
principles for the maintenance of the "rule of law", what is most essential is the
establishment of "representative democracy", providing for beneficial social and
economic services and conditions, personal independence, along with the principle
of "minimal interference."8

In England, Sir Edward Coke, the Chief Justice during James I reign, was credited
with being the originator of the concept of 'rule of law'. In the battle royal which he
waged against the King, Coke maintained successfully that the King must be under
God and the Law and thus vindicated the supremacy of law over the pretensions of
the Executive.

3.DICEY’S FORMULATION OF RULE OF LAW

A.V. Dicey developed the concept in the course of his lectures at the Oxford
University. He laid stress on the fact that Englishman could be punished for a breach
of the law and for nothing else. Dicey developed his thesis in his classic work entitled
“The Law and the Constitution" published in the year 1885.
In his formulation, Dicey attributed to the concept of "rule of law", the following three
meanings:

A. Supremacy of law
Explaining the first principle, Dicey states that rule of law means the absolute
supremacy or predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power. It excludes the existence of arbitrariness of

7
Id., 22.
8
Id., 22.

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 prerogative or even wide discretionary authority on the part of the Government.
According to him the Englishmen were ruled by the law and law alone. A man may
be punished for a breach of law, but can be punished for nothing else. 9 He denied
that in England the government was based on exercise by persons in authority of
wide arbitrary or discretionary powers. In his words, ' 'Wherever there is discretion,
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 on the part of its subjects."10 As Wade11 says the rule of law requires that
the Government should be subject to the law, rather than the law subject to the
Government.
In other words, according to this doctrine, no man can be arrested, punished or be
lawfully made to suffer in body or goods except by due process of law and for a
breach of law established in the ordinary legal manner before the ordinary courts of
the land. Dicey described this principle as 'the central and most characteristic
feature' of Common Law.
B. Equality before law
The attribute of "Rule of Law" Dicey stated was "equality before the law and equal
subjection of all classes to the ordinary law of the land administered by the ordinary
law courts."12
Explaining the second principle of the rule of law, Dicey states that there must be
equality before the law or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts. According to him, in England, all
persons were subject to one and the same law, and there were no extraordinary
tribunals or special courts for officers of the Government and other authorities.
According to him Courts are supreme throughout the state. 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 citizens. 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. Of course,
Dicey himself saw that administrative authorities were exercising 'judicial' functions

9
The Law and the Constitution, 1915, p. 202.
10
Id., p. 184.
11
Administrative Law, 1994, pp. 34-36.
12
Dicey, supra, note 16.

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 though they were not 'courts'. He, therefore, asserted: "Such transference of
authority saps the foundation of the rule of law which has been for generations a
leading feature of the English Constitution."
According to Dicey13, any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his
rights. In the words of Lord Denning 14: "Our English law does not allow a public
officer to shelter behind a droit administratif.''

Meaning of droit Administratif- Under the French Legal System, known as droit
administratif, there are two types of laws and two sets of courts independent of each
other. The ordinary courts administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as between the subject and
the State. An administrative authority or official is not subject to the jurisdiction of the
ordinary civil courts exercising powers under the civil ldfw in disputes between the
private individuals. All claims and disputes in which these authorities or officials are
parties fall outside the scope of the jurisdiction of ordinary courts and they must be
dealt with and decided by the special tribunals. Though the system of droit
administratif is very old, it was regularly put into practice by Napoleon in the 18th
century.

C. Predominance of legal spirit

Explaining his third exposition of "Rule of Law", Dicey asserted that the general
principles of the Constitution were the result of judicial decisions of the Courts in
England. in many countries rights such as right to personal liberty, freedom from
arrest, freedom to hold public meetings are guaranteed by a written Constitution; in
England, it is not so. Those rights are the result of judicial decisions in concrete
cases which have actually arisen between the parties. The Constitution is not the
source but the consequence of the rights of the individuals. Thus, Dicey emphasised
the role of the courts of law as guarantors of liberty and suggested that the rights
would be secured more adequately if they were enforceable in the courts of law than
by mere declaration of those rights in a document, as in the latter case, they can be
ignored, curtailed or trampled upon. He stated: “the Law of the Constitution, the rules

13
Cited by V.G. Ramachandran: Administrative Law, 1984.
14
Ministry of housing v. Sharp, (1970) 2 QB 223(226)

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which in foreign countries naturally form part of a constitutional Code, are not the
source but the consequences of the rights of individuals, as defined and enforced by
the courts.”

4.EVALUATION OF DICEY’S CONCEPT OF RULE OF LAW

Dicey's formulation of the concept of "rule of law" has been subjected to criticism on
various counts.
While explaining the contents of his doctrine of "Rule of Law", Dicey not only excluded
"discretionary powers" but also insisted that the administrative authorities should not be
given wide discretionary powers. He believed that "wherever there is discretion there
is room for arbitrariness."
Dicey, thus, failed to distinguish arbitrary powers from discretionary powers. While arbitrary
power is said to be inconsistent with the concept of "Rule of Law", discretionary power
would not be, if it is exercised properly. Intensive Government as it exists in modem
times, say Wade & Forsyth 15 "cannot be carried on without a great deal of
discretionary power" and that this power "is often conferred in excessively sweeping
language".
Besides, Dicey ignored the privileges and immunities enjoyed by the Crown (which
term stood for the Executive) under the cover of the Constitutional maxim "King can do
no wrong". Dicey, therefore, say Jain & Jain, was factually wrong in his analysis,
though his exposition of "Rule of Law" has had a tremendous impact on the growth of
Administrative Law in England.16
Dicey's criticism of French system of Administrative Courts is said to be based on his
mistaken conclusion. He misunderstood and miscomprehended the real nature of
the system. He held that Droit Administratif was designed for the purpose of giving to
officials "a whole body of special rights, privileges or prerogatives as against private
citizens",17 so as to make them a law unto themselves.
The French Administrative Law, the learned authors assert, "has a system of
compensation for the acts of public officers which is in some respect more generous

15
Supra note 3, 23.
16
Jain and Jain, Principles of Administrative Law, 2008, 13-14.
17
A.V. Dicey, The Law of The Constitution, X, 336.

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than that of English Law.”18 It is that, the French Conseil d’ Etat is widely admired and
has served as a model for other countries.19
Besides, Dicey also ignored the growth of administrative tribunals,20 quite a few of
which had come into existence when he propounded his concept of "rule of law".
Later, Dicey himself became conscious of the emergence of Administrative Law in
England.
The principle implicit in Dicey's "rule of law" thesis is that the Executive must act under
the law and not by its own decree or fiat. It is still the core principle of the Common
Law system.
One thing must be noted. In modern times, Dicey's rule of law has come to be
identified with the concept of rights of citizens. As Wade and Phillips 16 rightly state, it
is accepted in almost all the countries outside the Communist world with some
variations. It is invoked in modern democratic countries to keep control over the
oppressive, capricious and arbitrary exercise of powers by the administrative
authorities. The International Commission of Jurists, in their 'Delhi Declaration' made
in the year 1959 accepted the idea of the rule of law as a modern form of law of
nature. In the ultimate analysis it may be concluded that Dicey’s contribution to the
study of Administrative Law must be acknowledged.

5.MODERN MEANING OF RULE OF LAW

The modern concept of "Rule of Law" was developed by the International
Commission of jurists in 1959,21 which was later on confirmed at Lagos in 1961. The
Jurists22 recorded that "rule of law" depended not only on the existence of adequate
safeguards against the abuse of power by the executive but also on the existence of
effective Government capable of maintaining law and order and ensuring social and
economic conditions of life for society.

18
Ibid.
19
See Brown and Bell, French Administrative Law, V, quoted Ibid.
20
For instance, special tribunals were established under the Poor Law Amendment Act, 1834, whereunder
poor law boards exercised legislative and adjucatory powers. Besides, there were Ecclesiastical and Admiralty
Courts exercising special jurisdiction.
21
It is known as Delhi Declaration, 1959.
22
Ibid.

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Stating that an independent legal profession was the sine qua non of the "Rule of Law",
the Jurists expressed that there should be independent judiciary with the security of
tenure free from legislative and executive interference.23

The modern concept of the Rule of Law is fairly wide. Davis 24 gives seven principal
meanings of the term Rule of Law:—

(1) Law and Order,

(2) Fixed rules;
(3) Elimination of discretion;
(4) Due Process of law or fairness;
(5) Natural Law or observance of the principles of natural justice;
(6) Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and
(7) Judicial review of administrative action.

6.FORMAL AND IDEOLOGICAL MEANING OF “RULE OF LAW”

The term 'rule of law' can be used in two senses: formal sense, and ideological
sense. In purely formal sense the rule means no more than organised public power.
In this sense the rule of law refers to the rule of organisation.

In purely formal sense, any system of norm based on a hierarchy of orders, even the
organised mass murders of Nazi Regime qualify as law.

In ideological sense, the rule of law sets an ideal for any government to achieve.
This concept was developed by the International Commission of Jurists known as
Delhi Declaration, 1959.

7.RULE OF LAW IN INDIA

For a democratic government, rule of law is a basic requirement. The rule of law runs
like a golden thread through every provision of the Constitution and indisputably
constitutes one of its basic features, which requires that every organ of the state

23
Ibid.
24
Administrative Law, 1959, pp. 24-27.

8
 must act within the confines of powers conferred upon it by the Constitution and the
law. The rule of law pervades over the entire field of administration.25

Rule of law permeates the entire fabric of the Indian Constitution and indeed forms
one of its basic features.26 Law in the context of the rule of law does not mean any
law enacted by the legislative authorities, however arbitrary or despotic it may be
...............what is necessary element of the rule of law is that law must not be
arbitrary or irrational and it must satisfy the test of reason and the democratic form if
the polity seeks to ensure this element by making the frame of law accountable to
the people."27

Even law can promote arbitrary power. Law and rule of law are two different
concepts. As Justice Khanna emphasised in his celebrated dissenting opinion in the
Habeas corpus case,28 "A state of negation of rule of law would not cease to be such a
state because of the fact that such a state of negation of rule of law has been
brought about by statute.”
Every organ of the administration is regulated by the rule of law. The Indian
Constitution embodies the modern concept of the rule of law. The concept of the rule
of law exists in this country by virtue of the following features:
1) Supremacy of the constitution. - Dicey’s doctrine of the rule of law has been
accepted and embodied in the Constitution of India. In the Preamble are enunciated
the ideals of justice, liberty and equality. These concepts are enshrined in the Part III
as fundamental rights and are made enforceable. The Constitution is supreme 29 and
all the three organs of the government, that is legislature, executive and judiciary are
subordinate to and have to act in accordance with it. The principle of judicial review
is enshrined in the Constitution and subject can approach High Courts and Supreme
Court for enforcement of Fundamental Rights guaranteed under the Constitution.
Supreme Court under Art. 32 and High Court under Art. 226 can issue writs for
enforcement of the Fundamental Rights.

If the executive or the government abuses the powers conferred on it or if the action
is mala fide, the same can be quashed by the ordinary courts. All rules, regulations,

25
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
26
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
27
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
28
ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
29
AK Gopalan v. State of Madras, AIR 1950 SC 27.

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 ordinances, bye-laws, notifications, customs and usages are laws within the meaning
of Art.13 of the Constitution. If they are Inconsistent or contrary to any provision of
the Constitution, they can be declared ultra vires by the Supreme Court and the High
Courts. No person shall be deprived of his life or personal liberty except according to
the procedure established by law. 30 The executive and legislative powers of the
State and the Union are required to be exercised according to the provisions of the
Constitution. The government and public officials are not above law.

2) Constitutional requirement of equality. - Equality before law as a postulate of rule of

law has been accepted and adopted under Art 14 of the Constitution. The maxim ‘the
king can do no wrong' has no application in India. The government and public
authorities are subject to the jurisdiction of ordinary courts of law and for similar
wrongs are to be tried and penalized similarly.

In Som Raj v. State of Haryana31 it was held by the Supreme Court that normally, the
order of appointment would be in order of merit of candidates from the select list.
Even when the discretion is conferred on an executive authority, it must be exercised
in a reasonable, manner and should not be exercised arbitrarily. "The absence of
arbitrary power is the first postulate of the rule of law upon which our whole
constitutional edifice is based. If the discretion is exercised without any principle or
without any rule, it is a situation amounting to the antithesis of rule of law.”
3) Rule of law as a feature of basic structure. - In Kesvananda Bharti v. State of
Kerala32 some of the judges constituting majority were of the opinion that the Rule of
law was an "aspect of the doctrine of basic structure of the Constitution, which even
the plenary power of Parliament cannot reach to amend."
In Indira Nehru Gandhi v. Raj Narain,33 wherein the Apex Court invalidated Clause
(4) of Article 329-A, inserted in the Constitution by the Constitution (39th
Amendment) Act, 1975, to immunize the election dispute to the office of the Prime
Minister from any kind of judicial review, the following facets of "Rule of Law" may be
culled out—

30
Art. 21.
31
(1990) 2 SCC 653.
32
AIR 1973 SC 1461.
33
AIR 1975 SC 2299.

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 —that, 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,34
—that, the jurisdiction of the Supreme Court to try a case on merits cannot be taken away
without injury to the basic postulates of "the Rule of Law" and of justice within a
politically democratic constitutional structure,35
—that, since the validation of the Prime Minister's election was not by applying any
law, therefore, clause (4) of Article 329-A, offended the Rule of Law.36

4) Elimination of arbitrariness, and not of discretion. - Expounding the concept of rule of

law in Supreme Court Advocate-on-Record Association v. Union of India37, the
Supreme Court laid down that rule of law does not rule out existence of discretionary
power completely. In this case the court held the view that vesting of absolute power
in one individual is not warranted under the constitutional scheme. For the rule of law
to become realistic, there has to be room for discretionary authority within the
operation of the rule of law, even though it has to be reduced to the minimum extent
necessary for proper governance and within the areas of discretionary authority, the
existence of proper guidelines or norms of general application excludes any arbitrary
exercise of discretionary authority. In such a situation, the exercise of discretionary
authority in its application to individuals, according to proper guidelines, or norms
further reduces the area of discretion, but to that extent discretionary authority has to
be given to make the system workable.

Judicial activism as valiant enterprise is seen as a part of the efforts of Constitutional

Courts in India to establish rule of law society which postulates that no matter how
high a person may be the law is always above him. The Court is also making
efforts to link rule of law with human rights of the people. The Court is evolving
strategy by which it can force the government not only submit to law but also create
conditions where people can develop capacities to enjoy their rights in proper and
meaningful way. It is the responsibility of the public administration for effective
implementation of rule of law and constitutional commands which effectuate fairly the

34
Id., para 336, per Mathew, J. (Emphasis added).
35
Id., para 623, per Beg, J. (Emphasis added).
36
Id., para 59, per Ray, C.J.
37
AIR 1994 SC 268.

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objective standards laid down by law. Every government servant holding public
power is a trustee of the society and accountable for due effect national goals.
Although all the merits are unhurt in the concept of the Rule of law, the only negative
aspect of the concept is that respect for law degenerates into rigidity of legalism
which is injurious to the nation.

8.RULE OF LAW VIS-A-VIS ADMINISTRATIVE LAW

Administrative Law, broadly speaking, deals with the composition and powers of the
different organs of administration; the limits of their powers; the methods and
procedures followed by them in exercising their powers and functions; the various
modes by which their powers are controlled including the legal remedies available to
a person against them when his rights are infringed by their operation.38

Since, it is the individual who usually is affected in his dealing with the mighty
Administration, the most important function of Administrative Law is to protect him
from administrative excesses. It is to ensure that government’s powers are exercised
according to law, on proper legal principles according to the rules of reason and
justice and not on the mere caprice or whim of the administrative officers. It is the
central theme of “Rule of Law” which implies that the Executive must act under the
law and not by its own decree or fiat.

Thus, both "Administrative Law" as well as "Rule of Law” aim at controlling the
exercise by the Administration of arbitrary powers. There is, therefore, no contradiction
between the two.

The principal concern of Dicey's formulation of “Rule of Law” was "absence of

arbitrariness" and "equality before the law". It is to keep the Executive and the operation of its
powers within the limits of law. In that sense also Administrative Law does not infringe
but on the other hand, promotes “Rule of Law”. 39 For the Administrative Law is
developed not to sanctify Executive arbitrariness but to check it and protect the
rights of the people against the administrative excesses.

38
Jain and Jain, supra note 27, 12.
39
Harry W. Jones, The Rule of Law and The Welfare State, 58 Col. LR 143 (1958).

12
Wade and Forsyth state that the concept of “Rule of Law” might be called the
mainspring of Administrative Law and that the later is the area where the principle of
"Rule of Law" is to be seen in its most active operation.40

In the ultimate analysis, it may be stated that both “Rule of Law” and "Administrative
Law" emphasize on the judicial control of administrative action; both denounce the
increase of arbitrary or discretionary powers of Administration and advocate
controlling it through procedures and other means. “Administrative Law” thus does
not infringe, but on the other hand, promotes “Rule of Law”.41

40
Wade and Forsyth, supra note 3, 20-24.
41
See also supra, 15-19, “Development of Administrative Law”.

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 BIBILIOGRAPHY

1. A.V. Dicey, The Law and The Constitution, Liberty Fund, (reprint
edition)2010.

2. M.P. Jain & S.P. Jain, Principles of Administrative Law, Lexis Nexis
India, 7th Edition 2011.

3. J. N. Pandey, Constitutional Law of India, Central Law Agency,

Allahabad, 52nd Edition, 2015.

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