General Meaning –

The doctrine of rule is accepted in US and Indian Constitution. The entire basis f administrative law is the doctrine of rule of law. Sir Edward Coke, Chief Justice in James I’s reign was the originator of the rule of law. As early in 1215, in Magna Carta it had been said:

“No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgment of his peers and the law of the land.

n, King of England and Stephen Langton, Magna Carta – Article 39 (1215)

AV Dicey is one of the well-known jurists of England and he has written a famous book “Law of the Constitution” According to Dicey, the Rule of Law is the fundamental principles of the English legal system and he attributes three principles to the said doctrine –

  1. Supremacy of Law
  • Equality before law

Second principle of rule of law, Dicey stated 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. Dicey criticized the French legal system of droit administratif  in which there were distinct tribunals for deciding cases between the officials of the state and the local citizens.

  • Judge-made Constitution: Unwritten Constitution

Explaining the first principle, Dicey stated that Rule of Law means the absolute supremacy or predominance of regular law as opposed to influence of arbitrary power. It excludes the arbitrariness, of prerogative or even wide discretionary power on part of the government.

Third principle of rule of law, Dicey stated that in many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings etc. are guaranteed by a written Constitution. Thus Dicey emphasized 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.

Merits and Pitfalls of the Doctrine

The Doctrine of rule of law proved to be an effective and powerful weapon in keeping administrative authorities within their limits. The first principle recognizes a cardinal rule of democracy that every government must be subject to law and not law subject to the government. Second Principle is equally important in a system wedded to a democratic polity. Third principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in the written Constitution.  

No doubt, Dicey’s rule of law has its good points but also had its own limitations and pitfalls. The first rule of criticized on the ground that Dicey equated that supremacy of rule of law with absence of not only arbitrary powers but even of discretionary powers. The Second principle was also fallacious as he misunderstood the term of droit administartif. Dicey’s terminology has been criticized in various but the basic tenet expressed by him is that power is derived from, and is to be exercised according to law. In substance, Dicey’s emphasis, on the whole, in his enunciation of rule of law is on the absence of arbitrary power, and discretionary power, equality before law, and legal protection to basic human rights and these ideals remain relevant and significant in every democratic country even today.

Droit Administratif

Under the French legal system, there are two types of laws and two sets of courts independent of each other. Ordinary courts administer ordinary civil law between two subjects; administrative courts administer the law between the subject and the State. An administrative authority is not subject to the jurisdiction of ordinary civil courts.

The fact is that this system was able to provide expeditious and inexpensive relief and better protection to citizens against administrative acts or omissions than common-law system.  Dicey misunderstood the term and formed an opinion that the government and its servants possessed special and privileged rights as compared to any normal citizen of the nation. Thus, there lies no equality as to the rights available to government officials and the citizens of the same nation and misconception of Government officials not being subjected to the jurisdiction of the courts in the nation

Modern Concept of Rule of Law

Today Dicey’s terminology on rule of law cannot be accepted in totality. Thus Davis has given seven principle meanings of rule of law –

  1. Law and orders.
  2. Principle of Natural law.
  3. Fixed rules and regulations.
  4. Eliminate the idea discretion.
  5. Due and fair process of law.
  6. Preferences for judges and court of law to executive authority and administrative tribunals.
  7. Judicial review of administrative action[2]

Basic Principles of Rule of Law  

  1. Law is supreme and nobody is above the law.
  2. All the things should be done according to a law not as per whim.
  3. No person should be suffered except for the breach of law.
  4. Absence of arbitrary is the soul of the rule of law.
  5. Equality before the law and equal protection of the law.
  6. Speedy trial.
  7.  The fair and just procedure should be conducted.
  8. Independent and impartial judiciary.

Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was propounded and it was said that any part of the Constitution can be amended without disturbing the basic structure of it.

Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic structure and in the list rule of law was also added and it means that no amendment can be done in rule of law.

The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority within the State including executive government should be bound to obey the rules

[2] Administrative Law(1959) 24-27

Aishwarya Says:

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