Prevalence of the Rule of Law | 11 Sep 2023

Introduction

The term ‘rule of law’ is derived from the French word ‘le principe de legalite’ which
means ‘the principle of legality’.
Rule of law, also known as supremacy of law, means that no one (including
government) is above the law.
The rule of law is a legal principle that law should govern a nation against arbitrary
decisions by government officials.
Every person is subject to the jurisdiction of ordinary courts of law irrespective
of their position and rank.

Dicey’s Concept of Rule of Law

Professor A.V. Dicey is known to be the main exponent of the concept of the rule of
law.
In 1885, he propounded three principles of the rule of law in his classic book ‘Law
and the Constitution’.
According to Professor A.V. Dicey, to achieve the supremacy of law the following three
principles must be followed:
Supremacy of the law
Equality before the law
Predominance of legal spirit: the court should be free from impartiality and
external influence.

Supremacy of Law

This is the first pillar of Dicey’s concept of rule of law.

The Rule of Law rejects all kinds of arbitrary and discretionary powers of the
government or public officials.
It implies that a man may be punished for a breach of law, but he cannot be
punished for anything else.

Equality Before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before Law.
Dicey emphasizes the impartiality of law.
It means that there shall be no distinction between the rich and the poor,
officials and non-officials, majority and minority, no one can be degraded, and
no one can be upgraded.
Law gives equal justice to all.
He is of the view that there should be the same set of laws for all the people, and
they should be adjudicated by the same courts.

Predominance of the Legal Spirit

The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit.
According to Dicey, for the prevalence of the rule of law there should be an enforcing
authority and that authority he found in the courts.
He believed that the courts are the enforcers of the rule of law and hence it
should be free from impartiality and external influence.
Independence of the judiciary is therefore an important pillar for the existence of
the rule of law.
Criticism of Dicey’s Concept

Dicey has ignored the importance of the codification of laws.

Codification of laws is important to ensure the rights of an individual as it provides
certainty, anything which is codified is certain and thus, could be followed more
effectively.
He has misunderstood the concept of Droit administratif (the body of rules which
regulate the relations of the administration or of the administrative authority towards
private citizens).
According to him, the system was designed to protect the officials but in certain
respects, it was specifically effective in controlling the administration than the
common law system.

Rule of Law in India

Constitution of India, 1950 is the law of the land and prevails over the Judiciary, the
Legislature and the Executive.
These three organs of the state have to act according to the principles
engraved in the constitution.
Under the Constitution, the rule of law is incorporated in many of its provisions.
Article 13 promotes the doctrine of Rule of Law in India.
The “laws’’ defined under Article 13 as rules, regulations, byelaws and ordinances
can be struck down if they are contrary to the constitution of India.
Article 14 guarantees the right to equality before law and equal protection of law.
It states that no one shall be denied equality before the law and the equal
protection of the law by the state.
In the Kesavananda Bharati v. State of Kerala (1973) case, the Supreme Court has
included the Rule of Law as the basic feature of the Constitution.
In the Maneka Gandhi v. Union of India (1978) case, the SC in clear words observed
that Article 14 strikes arbitrariness in State actions, ensures fairness and equality in
treatment.
Another significant derivative goof rule of law is judicial review.
It is the power of the judiciary to examine the constitutionality of legislative
enactments and executive orders of both the Central and State governments.
It not only protects constitutional principles but also checks administrative actions
and its legality.
In the case of Shankari Prasad v. Union of India (1951), the power of judicial
review was established by the Supreme Court.
The powers of judicial review are delegated to the High Courts under Article 226 and
Article 227 and to the Supreme Courts under Article 32 and Article 136.

Modern Concept of Rule of Law

In today’s scenario, Dicey’s concept of Rule of Law is not accepted in totality.

The modern concept of the Rule of Law is fairly wide and therefore it sets up an ideal
for any Government to achieve.
The modern idea of Rule of Law was formed by the International Commission of
Jurists, otherwise called the Delhi Declaration, 1959, which was later affirmed at
Lagos in 1961.
According to the Modern Concept, the ‘Rule of Law’ implies:
Functions of the government in a free society should be so exercised in which the
dignity of a man as an individual is upheld.
Effective government capable of maintaining law and order.
 No arrest without the authority of law, Legal aid, public trial and fair hearing
and Presumption of Innocence.
Independent Judiciary
Thus, the rule of law in the modern sense ensures that there is encouragement of
political interest and where the criticism of the government is not only permitted
but also given a positive merit.

Exceptions to ‘Rule of Law’

President and Governors are provided with some immunity through Articles 361,
361 (2), 361 (3) and 361 (4) of the Indian Constitution. Article 361 states that -

(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable
to any court for the exercise and performance of the powers and duties of his office or
for any act done or purporting to be done by him in the exercise and performance of those
powers and duties:

(2) No criminal proceedings whatsoever shall be instituted or continued against the

President, or the Governor of a State, in any court during his term of office

(3) No process for the arrest or imprisonment of the President, or the Governor of a
State, shall issue from any court during his term of office

(4) Any civil proceedings in which relief is claimed against the President, or the
Governor of a State, shall be instituted during his term of office in any court in respect of
any act done or purporting to be done by him in his personal capacity, whether before or
after he entered upon his office as President, or as Governor of such State, until the
expiration of two months next after notice in writing has been delivered to the
President or Governor, as the case may be, or left at his office stating the nature of the
proceedings, the cause of action therefor, the name, description and place of residence of
the party by whom such proceedings are to be instituted and the relief which he claims.

Immunity to Foreign Diplomats.

The Vienna Convention on diplomatic relations of 1961 contains provisions in
relation to different immunities and privileges which are granted to the
diplomatic envoys or agents.
Immunity to Supreme Court and High Court Judges including Article 121 of the
Indian Constitution which restricts the discussion on the conduct of such judges in
Parliament.

Case Laws

ADM Jabalpur v. Shivkant Shukla (1976)

This case is also known as “Habeas Corpus case”. It is one of the most important
cases when it comes to rule of law.
The question that was raised before the Hon’ble Court was whether there was
any rule of law in India apart from Article 21 of the Indian Constitution.
DC Wadhva v. State of Bihar (1986)
The SC used the rule of law to decry state government which was too
frequently using its ordinance making power as a substitute of legislation by the
legislature.
The Court ruled that the re-promulgation of ordinances was unconstitutional
as the re-promulgation of the ordinances for a period of one to fourteen
years without going to the legislation was a colourable exercise of power by the
executive.
Yusuf Khan v. Manohar Joshi (2000)
The SC has laid down the proposition that it is the duty of the State to preserve
and protect the laws and that it may not permit any violent act, which may
negate the rule of law.