Tuesday, 19 July 2022

Rule Of Law

Rule of Law

The formal origin of the word is attributed to Sir Edward Coke, and is derived from French phrase ‘la principe de legalite’ which means Govt. based on rule of law. Coke said the king is under God.

The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular.

Dicey’s doctrine of Rule of law

  1. The absence of arbitrary power and the absolute supremacy or predominance of regular law

  2. Equality before the law

  3. Individual liberties

(1) Absence of arbitrary power/Supremacy of Law

  • The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.

  • Eg. A21 of Constitution of India

(2) Equality before Law

  • The Second Meaning of the Rule of Law is that no man is above law. 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 tribunals

  • Eg: A14, The Constitution of India.

(3) Individual liberties

  • The Third meaning of the rule of law is that the general principle of the constitution is the result of judicial decisions determining the rights of private persons in particular cases brought before the court.

  • Eg: Law laid down in Menaka Gandhi v Union of India …. A21 r/w A19 and A14 (Triangle).

Criticism of Dicey’s definition

  • Dicey theory was “individualist”.  Dicey has opposed the system of providing the discretionary power to the administration. 

  • In his opinion providing the discretionary power means creating the room for arbitrariness, which may create as serious threat to individual freedom. 

  • Now a days it has been clear that providing the discretion to the administration is inevitable. 

  • The opinion of the Dicey, thus, appears to be outdated as it restricts the Government action and fails to take note of the changed conception of the Government of the State/ welfare State/ Collectivism.

Dicey’s definition of Rule of Law has also been criticized on another perspective.

  • According to Dicey the Rule of Law requires equal subjection of all persons to the ordinary law of the country and absence of special privileges for person including the administrative authority. 

This proportion of Dicey does not appear to be correct even in England.

  • Several persons enjoy some privileges and immunities. 

  • For example, Judges enjoy immunities from suit in respect of their acts done in discharge of their official function. 

  • Besides, Public Authorities Protection Act, 1893, has provided special protection to the official. Foreign diplomats enjoy immunity before the Court.

  • Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory. 

  • But, despite of the above shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. 

  • He developed a philosophy to control the Government and Officers and to keep them within their powers. 

  • The rule of law established by him requires that every action of the administration must be backed by law or must have been done in accordance with law. 

  • The role of Dicey in the development and establishment of the concept of fair justice cannot be denied.

Basic Principles of the Rule of Law in today’s context

  • Law is Supreme, above everything and everyone. Nobody is the above law. 

  • All things should be done according to law and not according to whim.

  • No person should be made to suffer except for a distinct breach of law. 

  • Absence of arbitrary power is the rule of law 

  • Equality before law and equal protection of law

  • The present trend is that discretionary power is given to the Government or administrative authorities,

  • but the statute which provides it to the Government or the administrative officers lays down some guidelines or principles according to which the discretionary power is to be exercised.

  • Discretion should be exercised within reasonable limits set by law

  •  Adequate safeguard against executive abuse of powers 

  • Independent and impartial Judiciary

  • Fair and Justice procedure 

  • Speedy Trial

Rule of Law under the Indian Constitution

  • Ancient Indian system—Dharma

  • Preamble 

  • Article 14

    • Equality before the law

    • Equal protection of the laws

  • Article 19

  • Article 21

Rule of Law and Case laws

S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC 1427)

  • Supreme Court observed: 

  • “ The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be continued within clearly defined limits. 

  • The rule of law from this point of view means that decisions should be made by the application of known principles and rules. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law”.

Supreme Court Advocates on Record Association V. Union of India, (AIR 1994 SC 268)

  • reiterated that absence of arbitrariness is one of the essentials of rule of law. 

  • “For the rule of law to be realistic there has to be rooms for discretionary authority within the operation of rule of law 

  • even though it has to be reduced to the minimum extent necessary.

  • For proper governance within the area of discretionary authority, the existence of proper guidelines or norms must be there.”

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