RULE OF LAW- A HISTORICAL PERSPECTIVE

Rule of law is a basic principle of the English Constitution that was later accepted by the US and Indian Constitution. In simple words it is a doctrine that means no one is above law, whether it is a common man, or the government and all the decisions made should be in adherence to it. The entire administrative law revolves around this doctrine. This term was coined by Sir Edward Coke, the Chief Justice in James I’s reign where he stated that the King should be beneath God and law, establishing supremacy of law against the executive.

The noted British jurist A.V. Dicey then worked upon this concept and developed this theory of Coke and published it in his work “The Law and The Constitution” in the year 1885. He stated that rule of law is a fundamental concept in the English law and had given three meanings to it-

  1. Supremacy of Law
  2. Equality Before Law
  3. Judge made Constitution

SUPREMACY OF LAW– This term simply states that law of the land is supreme, hence all the powers will be derived from the law hence making them subordinate. This gives no room for arbitrary or discretionary power to the government. He states that a man can be punished only for breaking a law and for nothing else. He reasoned it out saying that if there is monarchial arbitrary or discretionary power given then it stands as a threat to the legal freedom on part of the citizens.

EQUALITY BEFORE LAW– Through this point Dicey expressed his opinion that all people should be treated equally before law. The ordinary law of land should be administered in the ordinary law courts. No special courts should be constituted for any government authority or people with privilege. He was critical about the French administrative tribunals known as Droit Administratif  in which separate tribunals were set up for taking matter of the State and the citizens. He stated that this was against the principle of equality.

JUDGE MADE CONSTITUTION-In England there was know written constitution which contrasted to the administrations of various countries where rights and duties were enforced by the written constitution. In England, the laws were based on judicial decisions on landmark cases that acted as precedents. He stated that a right or law guaranteed and enforced by a court will be more effective than ones written on documents.

MERITS

  • It proved to be an effective tool to keep a check on the administrative and executive authorities.
  • It was used and referred to by many legal systems as a safeguard to the constitutionalism.
  • The supremacy of law clearly stated that the administration is controlled by law and the law was not controlled by the administration.
  • Equality before law bought in the concept of restraint on the government authorities and others as now, they also could be equally tried before the courts if they break laws.
  • The emphasis on the duty of judiciary to safeguard the rights of the citizens was rightly stated highlight the fact that enforcement is greater than just preaching.

DEMERITS

  • There was a lot of emphasis given on supremacy of law, but there was no distinction given to discretionary power from arbitrary powers. This distinction is important for the functioning of a welfare state, where some decisions must be made on discretionary basis.
  • Dicey took the meaning of Droit Administratif in the other sense. The French had introduced this administrative system with special powers given to the government and privileged citizen, but they were governed by special court as well. Hence there was a check on their power as well. The Conciel de Etat was really the court that scrutinized the actions of the people with privilege and government authorities.
  • Even though equality before law was stated by Dicey, many countries were still under monarchial rule, where the wordings “King can never do wrong” was preached and followed.

CONCLUSION

The learnings and theory of A. V Dicey have given a shape to the fundamental doctrine of administrative law. It has been an important aspect in framing of laws, and identification of the rights of citizens. The distinction between discretionary powers and administrative powers was going to be an important development in the framing of laws in future.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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