Rule of Law

Presented By
Dr. Jaswinder Kaur
Assistant Professor
RGNUL, Patiala
• The term ‘rule of law” is derived from French Maxim “La Principe de
Lagalite” means the principles of legality which refers to a government
based on principles of law and not of men.
• It is opposed to arbitrary powers
• It is a State of affairs in which there are legal barriers to government
arbitrariness and there are available legal safeguards for the protection of the
individuals.
• It is the reverse of tyranny, the antithesis of the rule of anarchy and fear.
• One of basic principle of the English Constitution.
• Doctrine has been enshrined in the Constitutions of USA and India as well.
• Originator of this doctrine : Sir Edward Coke. Then Sir A.V. Dicey
developed it in his classical book, “The Law and the Constitution”
published in the year 1885.
 Meaning of Rule of Law

• According to Wade and Forsyth: four meaning to rule of law.

1. Everything must be done according to law.
2. Government Should be conducted within a framework of
recognized rules and principles which restrict discretionary power.
3. Dispute as to the legality of acts of government are to be decided
by judges who are independent of the executive.
4. Government should not enjoy unnecessary privileges or
exemptions from ordinary law.
 K.C. Davis: Seven Principles which promotes
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 of Judges and Ordinary Courts of Law to Executive
7. Judicial review of Administrative actions

• According to Jennings: In a Rule of law, powers of the Executive should

not only be derived from the law but that they should by limited by law.
 Rule of Law

• Rule of law is viable and dynamic concept.

• Not capable of exact definition.
• It is based on the principles of freedom, equality, non-discrimination, fraternity,
accountability and non-arbitrariness.
• It is certain, regular and predictable, using the word “law” in the sense of “jus” and
“lex” both.
• It is modern name for natural law. Romans called it “jus naturale”; medieval called
it the “Law of God”; Hobbes, Locke and Rousseau called it “social contract or
natural law’ and modern man calls it the “rule of law”.
• It is used in two sense: 1. Formalistic and Ideological sense.
• In Formalistic sense, it refers to organised power as opposed to a rule by one man.
• In Ideological sense, it refers to the regulation of the relationship of the citizens
and the government. In this sense, it become a concept of varied interest and
contents.
 Three Meaning of the Dicey’s rule of Law

• Supremacy of Law /Absence of discretionary power

- Absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power or wide discretionary power
- Denial of wide arbitrary or discretionary power of the government because
“whenever there is discretion, there is room for arbitrariness” which led to the
insecurity of legal protection of the citizens.
- justice should be done according to established principles of law and not
according to the discretion vested with the government officials.
• Equality before the law
- Equality before law or the equal subjection of all classes to ordinary law of
land.
- No extraordinary or special courts for officers of the government and other
authorities.
- No special privileges for government officials.
• Predominance of the legal spirit
- flow from customs, traditions and general principles of law recognized by
the courts. E.g in England.

Evaluation of Dicey’s concept of Rule of Law

• It gives preference to the supremacy of regular law over administrative
discretion, so that citizens may be given equality before law.
• Absence of wide powers in the hands of government officials. Acc. To
him, whenever there is discretion, there is room for arbitrariness.
• Powerful instrument in controlling the administrative authorities within
their limit.
• It saves the citizens from arbitrary exercise of power.
 Loopholes in Dicey’s concept of Rule of Law

1. Exclusion of discretionary powers

2. Failed to distinguish arbitrary power from discretionary power
3. Misconception regarding discretionary powers
According to American writer K.C. Davis, “it was impossible to find a
government of laws alone and not of men, in the sense of eliminating all
discretionary powers.”
In Indira Nehru Gandhi v. Raj Narain Case, the Hon’ble Justice
Mathew of SC of India said that, “If it is contrary to rule of law that
discretionary authority should not be given to government departments or
public officers, then there is no rule of law in any modern state. What
“rule of law” requires is that “courts should prevent the abuse of
discretionary powers.”
4. Ignored the growth of Administrative Tribunal
 Modern Concept of rule of law

• In 1959, the modern concept of Rule of Law was developed by the

International Commission of jurist known as Delhi Declaration, 1959. The
Jurist proclaimed :
“The rule of law is a dynamic concept which should be employed not only to
safeguard and advance of civil and political rights of the individual in a free
society but also to establish certain social, economic, educational and cultural
conditions, under which his legitimate aspiration and dignity may be realized”.
• The secretary General of United Nations in its 2004 report described rule of
law to contain principles of governance and the measures necessary to ensure
adherence to those principles.
• Recently Ex. CJI, N.V. Ramana, while delivering 17th Justice P.D. Desai
Memorial Lecture on Rule of Law, identified four component of rule of law
and brought out difference between rule of law an
• Quote on wider social and economic meaning to the concept
of rule of law
“ A nation is not merely a territory. A nation is essentially its
people. Only when its people progress, the nation progresses.”
 Case laws
• A.K. Kraipak v.Union of IndiaAIR 1970 SC 150
• ADM Jabalpur v. Shivkanth Sukhla AIR 1976SC 1207
• Bachan Singh v. State of PunjabAIR 1982 SC 1336
• Keshavananda Bharti v. State of Kerala AIR 1973 SC1461
• Indira Nehru Gandhi v. Raj Narain AIR 1975 Sc 2299
• Maneka Gandhi v. Union of India AIR 1978 SC 597
• Veena Sethi v. State of Bihar AIR 1983SC 339
• Som Raj v. State of Haryana(1990) 2 SCC 653
• L.Chandra Kumar v. Union of India
• State Financial Corporation v. Jagdamba Oil Mills AIR 2002 SC 834
• V.C. Mohan v, Union of India AIR 2002 Sc 1205
• T.N. Godavarman Thirumulpad v. Ashok Knot AIR 2006 SC 2007
• I.R.Coelho v. State of T.N. AIR 2007 SC 861