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. The term Rule of Law means the principles of
legality which refers to a government based on principles of law and
not of men. In this sense the concept of the rule of law is opposed
to arbitrary powers.
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 Is reign is said to be the originator of this great principle.
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 executives. Dicey developed this
doctrine of Coke in his classic book, The Law and the Constitution
published in the year 1885.1
Modern Concept of the Rule of Law
The Modern Concept of the Rule of Law is fairly wide. Dewis
gives seven principle meanings of the term rule of law:
1
2
3
4
5
6

Law and order

Fixed Rules
Elimination of Discretion
Due of process of law or fairness
Natural law or observance of the principles of natural justice
Preference for judges and ordinary courts of law to

executive authorities and administrative tribunals; and

Judicial review of administrative actions2

Meaning
The concept of rule of law is embedded in the Charter of the
United Nations, the Secretary-General defines the rule of law
as" a principle of governance in which all persons, institutions and
entities,

public

and

private,

including

the

State

itself,

1 Upadhyaya J.J.R. ,Administrative Law, Central Law Agency,

Allahabad pp-36
2 Ibid., pp-38 39

are

accountable to laws that are publicly promulgated, equally enforced

and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well,
measures to ensure adherence to the principles of supremacy of
law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness and
procedural and legal transparency."

The expression rule of law was given prominence by Dicey.

According to him, the rule of law is the one of the cardinal principles
of the English system. He attributed the following three meanings to
the doctrine:
I
II
III

Supremacy of law;
Equality before law; and
Predominance of legal spirit.

Supremacy of law- Expounding the first postulate, 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
prerogative power or even wide discretionary authority on the part
of government. He asserted that the Englishmen were ruled by the
law, and by the law alone; he denied that in England the
government was based on exercise by persons in authority of wide
arbitrary or discretionary powers. Dicey claimed, 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
government must mean insecurity for legal freedom on the part of
its subjects. Accordingly Wade also says, The rule of law requires
that the government should be subject to the law, rather than the
law subject to the government.
Equality Before law- Explaining the second postulate of the
doctrine of rule of law, Dicey says that there must be equality before
3 http://www.un.org/en/ruleoflaw/ accessed on 1st April 2014

the law or the equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts. In England, he
maintained all persons were subject to one and same law, and there
were no extra ordinary tribunals or special courts for the officers of
the government and other authorities. According to him, courts are
supreme throughout the state. In this connection he criticized the
French legal system of Droit Adminis Tratif in which there were
separate administrative tribunals also for deciding cases between
the officials of the state and the citizens. In his view, exemption of
civil servants from the jurisdiction of the ordinary courts of law and
providing them with the special tribunals was the negation of
equality.
Predominance of legal Spirit-

Explaining the third postulate,

Dicey says that the general principles of the constitution are the
result of the judicial decisions of the courts in England. In many
countries rights 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 consequence of the rights of the
individuals. Dicey apprehended that if the source of fundamental
rights of the people in any written constitution, the right can be
abrogated at any time by amending the constitution. In this way the
rule of law postulates judicial supremacy.4

Rule of Law under the Indian Law

Fundamental rights enshrined in part III of the constitution is a
restriction on the law making power of the Indian Parliament. It
includes freedom of speech, expression, association, movement,
residence, property, profession and personal liberty. In its broader
sense the Constitution itself prescribes the basic legal system of the
country. To guarantee and promote fundamental rights and

4 Supra note 1 pp 36 37

freedoms of the citizens and the respect for the principles of the
democratic State based on rule of law.
The popular habeas corpus case, ADM Jabalpur v. Shivakant
Shukla5 is one of the most important cases when it comes to rule of
law. In this case, the question before the court was whether there
was any rule of law in India apart from Article 21. This was in
context of suspension of enforcement of Articles 14, 21 and 22
during the proclamation of an emergency. The answer of the
majority of the bench was in negative for the question of law.
However Justice H.R. Khanna dissented from the majority opinion
and 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 meaning6
Every organ if 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 the virtue of
the following features:
1 Supremacy of the Constitution- Diceys doctrine of the rule of
law has been accepted and embodied in the constitution of
India. In the preamble, our enunciated the ideals of justice and
liberty and equality. The constitution is supreme and all the
three organs of the government, i.e. the legislature, The
Executive and the Judiciary are subordinate to and have to act
in accordance with it. The principle of Judicial Review is
enshrined in the constitution and subjects can approach High
Courts and Supreme Court for enforcement of fundamental
rights guaranteed under the constitution. Supreme Court
under A. 32 and High Courts under A. 226 can issue writs for
enforcement of fundamental rights.
5 AIR 1976 SC 1207
6 http://www.legalserviceindia.com/article/l459-Rule-oflaw.html accessed on 1st April

If the executive or the government abuses the powers

conferred on it or if the action is mala fied, the same can be
quashed by the ordinary courts. All rules, regulations,
ordinances, by-laws, notifications, customs and usages are
laws within the article 13 of the constitution. If they are
inconsistent or contrary to any provision of the constitution,
they can be declared as the ultra vires by the Supreme Court
and high courts. No person shall be deprived of his life or
personal liberty except according to procedure established by
law.7 The executive and legislative powers of the state and the
union are required to be exercised according to the provision
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 A. 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 similar wrongs are to be tried and penalized
similarly. They are subject to ordinary legal process. The
doctrine of equality is accepted in public service also. 8 Suits
for breach of contract and torts committed by the public
authorities can be filed in the ordinary courts and damages
recovered

from

the

state

government

or

the

union

government for acts of their employees.9

The Supreme Court observed in Som Raj v. State of
Haryana10 that the absence of arbitrary power is the primary
postulate of Rule of Law upon which the whole constitutional
edifice is dependant. Discretion being exercised without any
rule is a concept which is antithesis of the concept.
7 Article 20
8 Article 300-A
9 Article 299 and Article 300
10 1990 2 SCC 653

3 Constitutional Guarantee and Judicial Enforcement of RightsIn the constitution of India are guaranteed certain rights which
can be enforced by the courts. At this juncture, we may
consider the position prevailing in India as regards the third
principle of Diceys doctrine of rule of law, i.e., predominance
of legal spirit. Until recently, this principle was being
considered in the context of interpreting the provision of the
constitution.
But in Chief settlement Commissioner, Punjab v. Om
Prakash11 , it was observed by the supreme court that, In
our constitutional system, the central and most characteristic
feature is the concept of rule of law which means, in the
present context, the authority of law courts to test all
administrative

action

by

the

standard

of

legality.

The

administrative or executive action that does not meet the

standard will be set aside if the aggrieved person brings the
matter into notice
4 Rule of Law as A Legal Concept- The basic concept of rule of
law is not a defined legal concept. The courts would not
declare any positive law to be invalid on the grounds that it
violates the contents of rule of law. However, in habeas corpus
case an attempt was made to challenge the detention orders
during emergency on the ground that they were violate of the
principles of the rule of

law as the obligation to act in

accordance with rule of law ............ is the central feature of

our

constitutional

system

and

is

basic

feature

of

constitution.
5 Rule of Law as A Feature of Basic Structure- In Kesavananda
Bharti vs. State of Kerala12 some of the judges constituting
majority were of the opinion that the rule of law was an
11 AIR 1969 SC 33
12 AIR 1973 SC 1461

aspect of the doctrine of basic structure of the constitution,

which even the plenary power of Parliament cannot reach to
amend.
In Indira Gandhi Nehru vs. Raj Narain13 - Article 329-A was
inserted in the Constitution under 39th amendment, which
provided certain immunities to the election of office of Prime
Minister from judicial review. The Supreme Court declared
Article 329-A as invalid since it abridges the basic structure of
the Constitution.
6 Elimination of Arbitrariness, and Not of Discretion-From the
Indian Conception of Rule of Law is eliminated arbitrariness
and not discretion. As Davis has observed: All Governments
in history has been governments of laws and of men. Rule
alone untempered by discretion cannot cope with

the

complexities of Modern government and of modern justice.

Discretion

is

our

principal

source

of

creativeness

in

government and in law. It therefore becomes necessary to

confine structure and check discretion in order to uphold the
principles of rule of law in administration, so that the
discretionary power does not degenerate into arbitrary power.
As Justice Matthew has said in Indira Nehru Gandhi v. Raj
Narain that there is in the world no government or legal
system which has no discretion. It is not possible that a
government maybe composed of law alone, but not of men
and those men may not be given discretion. All the
governments are composed of law and men. The needs of
modern government are to make wide discretionary power in
escapable. If discretion is taken as arbitrariness, there may
not be a single political system having rule of law. Discretion is
essential for the viability of nay political system. The only
important aspect is misuse of discretion.

13 AIR 1975 SC 2299

Accordingly expounding the concept of rule of law in Supreme

Court Advocates on Record Association v. Union of
India14, 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 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.
7 Compliance with the requirement of law- In a rule of law society,
the executive is required to observe and comply with the
requirement of law. In Sambamurthy v. State of A.P. 15 arose a
question of great legal importance having far reaching effect. In this
case the Supreme Court held that Article 371-D (5) (Proviso) of the
Constitution violates Rule of Law which is a basic structure and
essential feature of the Constitution. This constitutional provision
empowered the State Government of Andhra Pradesh to nullify any
decision of the Administrative Services Tribunal. Declaring the
provision unconstitutional, the Supreme Court observed: "It is a
basic principle of the rule of law that the exercise of power by the
executive or any other authority must not only be conditioned by
the Constitution but must also be in accordance with law and the
power of judicial review is conferred by the Constitution with a view
to ensuring that the law is observed and there is compliance with
the requirement of law on the part of the executive and other

14 AIR 1994 SC 268

15 AIR 1987 SC 357

authorities. It is through the power of judicial review conferred on an

independent institutional authority such as the High Court that the
rule of law is maintained and every organ of the state is kept within
the limits of the law. Now if the exercise of the power of judicial
review can be set at naught by the state government by overriding
the decision given against it, it would sound the death-knell of the
rule of law. The rule of law would cease to have any meaning
because then it would be open to the state government to defy the
law and get away with it. The proviso to clause (5) of Article 371-D
8

is therefore clearly violative of the basic structure doctrine."

Fairness in action.One of the advances made in the realm of the
rule of law is the requirement and enforcement of fairness in the
action of administration. It was noticed that with the growth of
governmental functions it was not possible for government by itself
to undertake to regulate and control, say, the services, industries,
professions, education and other similar activities and that persons
possessing special skills and experience rather than politicians who
compose government should do it. Thus there grew congeries of
Commissions, Boards, Tribunals and bodies to deal with these and
many other matters. In such a ..,.on text it is heartening to note that
courts' are making all concerted efforts to establish a rule of law
society in India by requiring 'fairness' in every aspect of the exercise
of power by state. Such development which has revolutionized
administrative law owes its genesis to the decisions of the Supreme
Court in R. D. Shetty v. international Airport Authority 16. and
Ajay Hasia v. Khalid Mujeeb Sehravardim 17. These have laid
down

that not only the

State

Government but also every

instrumentality or agency of the State Government is subject to the

constitutional limitations by the Fundamental Rights and of the
limitations so imposed is that every action of the state or its
9

instrumentality or agency must be fair.

Public interest in security of social welfareThe rule of law notion
as evolved by the do Courts extends to the protection of social
welfare as well. With this end in view the Supreme Court in Veena

16 AIR 1979 SC 1728

17 AIR 1981 SC 487

Sethi v. State of Bihar 18. held that the reach of the rule of law
extended to the poor and the down-trodden, the ignorant and
illiterate who constitute the large bulk of humanity in India. In this
case the court ruled that the rule of law does not exist merely for
those who have the means to fight for their rights and very often for
perpetuation of the status quo which protects and preserves their
dominance and permits them to exploit a large section of the
community. Such a ruling was given on basis of a letter written by
the Free Legal Aid Committee, Hazaribagh. Bihar drawing its
attention to unjust died and illegal detention of some prisoners in
jail for about two or three decades. Similarly in People's Union for
Democratic Rights v. Union of India (Asiad case) 19 a petition
by a public spirited organisation on behalf of persons belonging to
socially

and

economically

weaker

section

employed

in

the

construction work of various projects connected with the Asian

Games, 1982 complaining of violation of various provisions of labour
laws was held maintainable. In the opinion of the court, rule of law
is intended to promote and vindicate public interest which demands
that violations of constitutional or legal rights of large number of
people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredressed.
That would be destructive of the rule of law which forms one of the
essential elements of public interest in any democrative form of
government. The rule of law does not mean that the protection of
law must be available only to a fortunate few or that the law should
be allowed to be prostituted by the vested interests or protecting
and upholding the status quo under the guise of enforcement of
their civil and political rights. The poor too have civil and political
rights and rule of law is meant for them also in reality. In this way,
under the concept of rule of law, the idea of justice is no more
confined to the rights of the individual only but has been extended
10

to the socio-economic spheres as well.

National policy of reservation for

Backward

Classes

and

constitutional viability of creamy-layerIn the Mandal Commission

Case, 1992 the Supreme Court has upheld the national policy of

18 AIR 1983 SC 339

19 AIR 1982 SC 1473

reservation in favour of socially and educationally backward classes

but at the same time has also required identification and exclusion
of creamy layer for extension of the reach of Rule of law to the
disadvantaged section of people'.
11 Pervasiveness of the concept of rule of law.The Constitution of
India

embodies

the

modern

concept

of

the

rule

with

the

establishment of a judicial system which should be able to work

impartially and free front all influences. The rule of law pervades
over the entire field of administration and every organ of the state
is regulated by the rule of law. The concept of this rule of law would
lose its vitality if the instrumentalities of the state are not charged
with the duty of discharging their function in a fair and lust manner.
According to Goodhart, although much emphasis is placed upon the
supremacy of the legislature in some countries of the West, the Rule
of Law does not depend upon contemporary positive law it may be
expressed in positive law but essentially it consists of values and
not institutions it connotes a climate of legality and legal order in
which the nations of the West live and in which they wish to
continue to live.
Judicial activism as valiant enterprise is seen as is 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
or always above him The Court is also making efforts to link rule of
law with human rights of the people. The Court it 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
there right 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 objective
standard* 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.20

20 Supra note 1 pp 39-45

Conclusion
The rule of law in the Indian society has not achieved the intended
results is that the deeply entrenched values of constitutionalism or
abiding by the Constitution of India have not taken roots in the
society. Corruptions, Terrorism etc. are all antithesis to Rule of Law.
In recent times, common law traditions, the Constitution of India,
and the perseverant role of the judiciary have contributed to the
development of rule of law. But on occasions we have slipped back
into government by will only to return sadder and wiser to the rule
of law when hard facts of human nature demonstrated the
selfishness and egotism of man and the truth of the dictum that
power corrupts and absolute power corrupts absolutely. A few
examples of how our judicial system has upheld the rule of law and
ensured justice is clearly seen in the creation of new avenues
seeking remedies for human rights violations through PIL pleas and
promotion of genuine interventions by the judiciary in the areas of
bonded

and

child

labour,

prostitution,

clean

and

healthy

environment etc. but on the darker side there have been violations
of fundamental rights as well. For e.g. The discrimination of eunuchs
based on their class and gender makes the community one of the
most disempowered groups in Indian society Eunuchs might have an
accepted place in Indian society, but it is a place pretty much at the
bottom of the social heap making them not just a sexual but also a
highly deprived social minority. The recent example is of the singur
incident a Division Bench of the High Court comprising Honorable
Chief Justice S S Nijjar and Honourable Justice Pinaki Chandra Ghosh
also took suo moto note of the incident21

21 Supra note 6