“CONCEPT OF RULE OF LAW AND INDIAN CONSTITUTION”

A Project submitted in the partial fulfilment of the course

ADMINISTRATIVE LAW, 6th SEMESTER during the Academic Year
2020-2021

SUBMITTED BY:

AASTHA AGNIHOTRI

Roll No. – 1902

B.A. LL.B. (Hons.)

SUBMITTED TO: PROF.

DR. PETER LADIS F

FACULTY OF ADMINISTRATIVE LAW

ACADEMIC SESSION- 2018-2023

CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR, MEETHAPUR, PATNA-800001

 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A.LL.B (Hons.) Project Report Entitled
“CONCEPT OF RULE OF LAW AND INDIAN CONSTITUTION” submitted at
Chanakya National Law University, Patna is an authentic record of my work carried out
under the supervision of Prof. DR. FR. PETER LADIS F. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

AASTHA AGNIHOTRI

Chanakya National Law University, Patna

 ACKNOWLEDGEMENT

Firstly, I would like to thank my faculty of ADMINISTRATIVE LAW, Prof. DR. FR.
PETER LADIS F, for providing me an opportunity to make my project on such an interesting
topic which is also a contemporary issue as for now.
Secondly, I would like to thank all my colleagues and friends for helping me out in
arranging of the accumulated collected study material.

Lastly, special thanks to my parents for guiding me in giving the final touch to this project
and helping me out throughout this project.
CONTENTS
1. INTRODUCTION 5

2. DICEY’S CONCEPT OF RULE OF LAW 7

3. RULE OF LAW AND THE CONSTITUTION OF INDIA 10

4. MODERN CONCEPT OF RULE OF LAW 12

5. CONCLUSION AND SUGGESTIONS 15

BIBLIOGRAPHY 16
 1. INTRODUCTION

The phrase ‘rule of law’ is derived from the French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a government based on principles of law and not of men.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. ‘Rule of law’ is the basic rule of governance of
any civilised policy. 1

Rule of law in a plain language can be defined as a situation in which the law of the
land is superior to the government ruling the land. It is a legal regime which restraints the
power of the government. It does so to ensure that the government does not resort to arbitrary
power or abuse its powers in order to rule over the people of the land. As stated by several
political and legal philosophers, democracy cannot be sustained in a country without
establishment of rule of law.2

History:

The idea of ‘Rule of law’ can be traced back to Aristotle, who in a modern English
translation refers to the rule of law, although the passage more literally translated says: ‘It is
better for the law to rule than one of the citizens’ and continues ‘so even the guardians of the
laws are obeying the laws’

It can be seen in ancient Rome during their first republic; it has since been championed by
several philosophers and legal scholars such as Hobbs, Locke and Rousseau through the social
contract theory. Indian philosophers like Chanakya has also adopted the ‘rule of law’ theory in
his own way by asserting the rule that even the king is subject to the law and is governed by it.

The concept was introduced by Chief Justice Sir Edward Coke during the James I rule.
Sir Coke said that the King is under God and the Law and that the Law is supreme over
executive. The modern concept of rule of law that we study now was expounded by Albert
Venn Dicey in his book ‘Introduction to the Study of the Law of the Constitution (1885)’.

The term ‘Rule of law’ is neither a law nor a rule, but it is a doctrine of political
morality that aims at ensuring the correct balance of rights and powers between individuals
and the state.
1 Durga Das Basu, Shorter Constitution of India, Lexis Nexis (14th ed. 2013) Pg.82
2 International Journal For Legal Developments And Allied Issues [VOL 2 ISSUE 1] pg.57
 The importance of Rule of law and the cases referring to it came into the view of the judiciary
after the Supreme Court observed: “In a welfare state like ours it is inevitable that the organ of
the State under our Constitution is regulated and controlled by the Rule of Law.”3

The Supreme Court on another case stated that Rule of law was a basic feature of the Indian
Constitution.4

AIMS AND OBJECTIVES:

a. To know about the Dicey’s Rule of Law.

b. To know about the Rule of law applicability in Indian Legal System.

c. To critical analysis Rule of Law in Indian Constitution .

HYPOTHESIS:

1. The Organs of state derives it’s power from constitution and regulates from Rule of
Law.
2. Democracy cannot be sustained in a country without establishment of rule of law.

RESEARCH METHODOLOGY:

The method of this research work is Doctrinal in nature.

SOURCES:

Primary Sources: Observations, Questionnaire, Government documents, Internet

communications on email, blogs, newsgroup.

Secondary Sources: Reference books, Commentaries and treatises, Works of

interpretation, Textbooks, Abstracts.

LIMITATIONS OF STUDY: The researcher will confine the research to the city of Patna,
Bihar. Due to the constraints, the researcher will include library work.

SCOPE: To understand the concept of delegated legislation.

3 A.K Kraipak v Union of India (1969)

4 Indira Nehru Gandhi v Raj Narain (1975 AIR 1590)
 2. DICEY’S CONCEPT OF RULE OF LAW

As per Prof. A. V. Dicey, “the rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power and excludes the
.5
existence of arbitrariness or even of wide discretionary authority on the part of Government”

According to Dicey, constitution is governed by three main principles:- Absolute

supremacy of law, Equality before law, Predominance of Legal spirit.

Absolute supremacy of law:

“…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 courts of the land. …” 6

Dicey proposed that no person can be punished except for a breach of law. Penalty can
only be imposed on an individual for a breach of an established legal rule proved in the
ordinary courts of law. Further explaining this principle, Dicey stated 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.
This safeguards citizens against arbitrary sanctions being imposed on them by requiring that
all laws be established “in the ordinary legal manner”.

Example:- Entick v Carrington (1765)7: the court refused to accept that a government minister
in absence of any common law or statutory authority had any power to grant warrants
permitting entry and search of private premises.

According to Dicey, Law is the absolute supreme and predominant as opposed to influence of
arbitrary power or discretionary power. He says that English men are ruled by the Rule of Law
and law alone. A man can be punished by rule of law, and by nothing else. He considers
supremacy of law to be the central and most characteristic feature of common law.

5 https://www.oxbridgenotes.co.uk/revision_notes/law-constitutional-law/samples/rule-of-law (last retrieved

04.04.2021)
6 Dicey, AV, Introduction to the Study of the Law of the Constitution, 8 th ed., 1885, reprint 2001, Liberty Fund
Publishing p110
7 Entick v Carrington [1765] EWHC KB J98
 Equality before law:

“ when we speak of the “Rule of Law”, as a characteristic of our country, not only that
with us no man is above the law, but (what is a different thing) that here every man,
whatever be his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary courts.”8

Every man, whatever his rank or condition is subject to the ordinary law of the land
administered by the courts. Equality before law is a co-relative to the concept of rule of law
for all round evaluation of healthy social order9. No one is above the law, official and citizens
alike should and need to obey the same law. The law does not discriminate between
individuals on the basis of race, colour, age or sex etc.

Dicey opposes that officials enjoy legal privileges and immunities. Though a person
may incur from his position as a public official legal liability from which other men are
exempt, he does not escape thereby from the duties of the ordinary citizen, i.e. even the
President of India is liable to be punished for any wrongs he did, but only after his term of
presidency is over10 and he cannot be summoned11. So no man is exempt from the jurisdiction
of the courts.

Predominance of Legal spirit:

“…. that with us the law of the Constitution, the rules which in foreign countries
naturally form part of the constitutional code, are not the source but the consequence of the
rights of individuals, as defined and enforced by the courts; that in short, the principles of
private law have with us been by the action of the courts and Parliament so extended as to
determine the position of the Crown and of its servants; thus the constitution is the result of
the ordinary law of the land….”12

This means that the rights of the individual are not ensured by the guarantees set down

8 Dicey, AV, Introduction to the Study of the Law of the Constitution, 8 th ed., 1885, reprint 2001, Liberty Fund
Publishing p114
9 Dalmia Cement (Bharat) Ltd. v. Union of India, (1996)10 SCC 104 (para18)
10 Rameshwar Prasad & Ors. v. Union of India & Anr.[W.P. (C) No.255 of 2005]
11 Article 361 of the Constitution of India
12 Dicey, AV, Introduction to the Study of the Law of the Constitution, 8 th ed., 1885, reprint 2001, Liberty Fund
Publishing p121
in a formal document but by the ordinary remedies available against those who unlawfully
interfere with someone’s liberty.

The general principles of the British Constitution, especially the liberties and the rights
of the people must come from tradition and customs of the people and be recognized by the
courts in administration of justice.

The courts together with Parliament over time created the Constitution in contrast to
other countries which created a supreme constitution, from which all other power is derived.
In short the British Constitution is the consequence of evolution and Indian Constitution is the
result of adopting the best from the evolved constitution around the world.
 3. RULE OF LAW AND CONSTITUTION OF INDIA

The Constitution of India intended for India to be a country governed by the rule of
law. It provides that the constitution shall be the supreme power in the land and the legislative
and the executive derive their authority from the constitution. Any law that is made by the
legislative has to be in conformity with the Constitution failing which it will be declared
invalid.13

The Constitution of India adopted the rule of law from the UK along with the Common
law system, Article 14 of the Indian Constitution ensure to all its citizens and non-citizens
alike Equality and that no person shall be discriminated on the basis of caste, creed, sex,
religion, place of birth etc.

The Constitution of India starts with a preamble which gives the Constitution a base
and lays down principles which give importance to the individuals and their interests.
Progressing down the preamble, it states that India is a Sovereign, Democratic, Republic and
Secular nation. These ideals and principles enshrined in the Constitution are taken from
various Constitutions around the world and is the largest written Constitution in the world.
Indian government runs on three pillars, Legislature, Judiciary and Executive, these bodies
have been given separate powers, to make laws, to implement changes to them, to enforce
these laws, etc.

Indian Constitution fulfils all the requirements of Dicey’s theory to be recognized as a

country following the Rule of Law. The Supreme Court of India has further strengthened this
through its various judgements, the foremost of them being A D M Jabalpur v Shivkanth
Shukla, 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 K.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, the distinction between a lawless society and one
governed by laws would cease to have any meaning….Rule of law is not the accepted norm of

13 Article 13(1)
 all civilized societies”14

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.15

In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 16 A Constitution Bench
of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to
the rule of equality in public employment is a basic feature of our Constitution and since the
rule of law is the core of our Constitution, a court would certainly be disabled from passing an
order upholding a violation of Article 14 or in ordering the overlooking of the need to comply
with the requirements of Article 14 read with Article 16 of the Constitution.”

But the most noted case was of Keshavananda Bharati v State of Kerala17 the Supreme
Court held that the Rule of Law is an essential part of the basic structure of the constitution
and as such cannot be amended by any Act of Parliament, thereby showing how the law is
superior to all other authority of men.

14 A D M Jabalpur V Shivkanth Shukla [1976 AIR 1207, 1976 SCR 172]

15 Chief Settlement Commissioner Punjab v Om Prakash [1969 AIR 33]
16 AIR 2006 SC 1806
17 AIR 1973 SC 1461
 4. MODERN CONCEPT OF RULE OF LAW

Administrative law developed not to sanctify executive arbitrariness but to check it and
protect the rights of the people against the adminitration’s excesses. Therefore, the central
theme of administrative law is also the reconciliation of liberty with power. Administrative
law and the rule of law are not discrete series. Both aim at the “progressive diminution of
arbitrariness and fostering a discipline of fairness and openness in the exercise of public
power”. However, though Dicey’s distrust of the administrative process and administrative
adjudication has been proved wrong in the French context, it is still valid in the Indian
situation where administrative action is often arbitrary and based on extraneous considerations
and administrative justice is an euphemism for the denial of justice.18

The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal for any
government to achieve. This concept was developed by the International Commission of
Jurists, known as Delhi Declaration, 1959 which was later on confirmed at Lagos in 1961.
According to this formulation, the rule of law implies that the functions of the .government in
a free 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 Indian Supreme Court has developed some fine principles of
Third World jurisprudence. Developing the same new constitutionalism further, the Supreme
Court in Veena Sethi v. State of Bihar19 extended the reach of the rule of law to the poor and
the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India,
when it ruled that the rule of law does not exist merely for those who have the means to fight
for their rights and very often do so for the perpetuation of the status quo, which protects and
preserves their dominance and permits them to exploit a large section of the community. The
opportunity for this ruling was provided by a letter written by the Free Legal Aid Committee,
Hazaribagh, Bihar drawing its attention to unjustified and illegal detention of certain prisoners
in jail for almost two or three decades.

18 Indian Express, 15-9-1982, 9. (Supreme Court upheld the decision of the High Court. Indian Expressy 5-3-
1985).
19 (1982) z SCC 583, 586: AIR 1983 SC 339.
The Commission divided itself into certain working groups which tried to give content to the
concept in relation to an individual‟s area of activity in a society:

(1) Committee on Individual Liberty and the Rule of Law, which lays down
(a) that the State should not pass discriminatory laws;
(b) that the State should not interfere with religious beliefs;
(c) that the State should not place undue restrictions on freedoms,

(2) Committee on Government and the Rule of Law Under this the rule of law means not only
the adequate safeguards against abuse of power but effective government capable of
maintaining law and order.

(3) Committee on Criminal Administration and the Rule of Law Rule of law here means
(a) due criminal process;
(b) no arrest without the authority of law;
(c) presumption of innocence;
(d) legal aid;
(e) public trial and fair hearing.

(4) Committee on Judicial Process and the Rule of Law

Under this the rule of law means

(a) Independent judiciary;

(b) Independent legal profession;

(c) Standard of professional ethics.

The modern concept of “Rule of Law” was developed by the International Commission of
Jurists (Delhi Declaration) in 1959, which was later on confirmed at Lagos in 1961. The jurists
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.

Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of
the rule of law is fairly wide and therefore sets up an ideal that any government can achieve.
This concept was developed by the Delhi Declaration (1959) and according to them; the rule of
law implies that the functions of the government in a free society should be so exercised as to
create conditions in which the dignity of man as an individual is upheld.20

20 https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-
administrative-law-essay.php#ftn14 (Last retrieved on 04-04-2021)
 5. CONCLUSION AMND SUGGESTIONS

If we want to remain a free nation, we must have the inner spiritual resources – a faith, not an
ideology – which will enable us to transcend ourselves for the national good, and make
decisions that cost us comfort, money, friends, and perhaps our very lives. “Is typical of what
can happen in India when the Western concept of common law, natural law and rules of
natural justice is treated as a pernicious outside influence!” “Let us not pretend that the rule
of law is a concept which can be regarded as a part of the Indian psyche.” These words of
Nani Palkiwala must be eye opener for all of us, whatever problems with which we are
suffering today are the result of our own fault, we have to establish our own rule of law with
this object we must reconcile existing “Rule of Law” with ancient rule of law.

Even though our Constitution enshrines the principle of rule of law and our honourable courts
have from time to time used Judicial activism to expand the concept of rule of law, it
implementation at many occasion have failed. Therefore the need of the hour is to correct its
implementation in order to deliver justice to everyone and ensure that law is above all and all
are equal before law.

BIBLIOGRAPHY
BOOKS REFFERED

● MP JAIN AND SN JAIN: PRINCIPLES OF ADMINISTRATIVE LAW

● I P MASSSEY: ADMINISTRATIVE LAW
● C.K TAKWANI: LECTURES ON ADMINISTRATIVE LAW
● DURGA DAS BASU: SHORTER CONSTITUTION OF INDIA

● TOM BINGHAM: THE RULE OF LAW

● DICEY, AV :INTRODUCTION TO THE STUDY OF THE LAW OF THE

CONSTITUTION
● INTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND ALLIED
ISSUES [VOL. 2, ISSUE 1]

WEBSITE REFFERED

● http://www.nadr.co.uk

● https://www.oxbridgenotes.co.uk

● https://www.westlaw.com/
● https://indiankanoon.org/