Rule of Law embodies the doctrine of supremacy of law. It is basic and fundamental necessity for a disciplined and organized society. If a government acts according to the principle of rule of law then individual liberty and right can be protected in better way. The principle implicit in the rule of law that executive must act under the law, and not by its own decree or fiat, is still a cardinal principle of the common law system. The executive is regarded as not having any inherent powers of its own but all its powers flow and emanate from the law, a principle which plays such a vital role in all democratic countries of to-day.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. A country that enshrines the rule of law would be one where in the Grundnorm1of the country, or the basic and core law from which all other law derives its authority is the supreme authority of the state. The monarch or the representatives of the republic are governed by the laws derived out of the Grundnorm and their powers are limited by the law. The King is not the law but the law is king.
The term “Rule of Law” ‟ is nowhere defined in the Indian Constitution. We can find that the term is though used frequently by the Indian courts in their judgments.
The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals. Constitutional governments are based on a previous commitment to freedom under the rule of law. The essential attribute of constitutionalism is a legal limitation on government. Under constitutionalism, rulers are not above the law, government power is divided with laws enacted by one body and administered by another, and an independent judiciary exists to ensure laws are administered objectively. An efficient and effective constitution allows government to function to protect the lives and liberties of citizens without violating the rights of some to provide gains to others.
Meaning of Rule of Law:
The term „Rule of Law‟ is taken from England. It means that no man is above the law and that every person is subject to the jurisdiction of ordinary courts of law, irrespective of his rank and position. „Rule of Law‟ requires that no person should be subjected to harsh, uncivilized or arbitrary treatment. Rule of law is associated with the word „law‟ which means that man or a society must not govern by a man or ruler but rather than they must be govern by Law. In other words we can say that law means law of land which is defined under Article 13 of Indian Constitution. Rules mean law rules. Since, there is no physical existence of law so law means government based on principle. It means all the acts of government should be reasonable and according to law.
The expression “rule of law” explains a state of affairs in which everything must be done according to law. It is a state of affairs in which there are legal barriers to governmental arbitrariness and there are available legal safeguards for the protection of the individuals. In simple words, it is the reverse of tyranny, the antithesis of the rule of anarchy and fear.8
According to Oxford Advance Learner‟s Dictionary,
Rule of law means the situation in which all the citizens as well as the state are ruled by the law.
According to Black‟s Law Dictionary
“rule of law” means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition.
Principles of Rule of Law according to Prof. Dicey
According to Prof. Dicey, rule of law has three means or we can say three principles which are must be followed so that there will be supremacy of rule of law.
The three principles are:
- Supremacy of law;
- Equality before Law; and
- Predominance of Legal Spirit.
1. Supremacy of Law
According to the first principle, A. V Dicey states that rule of law means there should be lacking of arbitrariness or wide discretionary power. In other words every act will be controlled by law. According to Dicey the English men were ruled by the law and law alone. In the words of Dicey, “Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects.”10As Wade11 says the rule of law requires that the Government should be subject to the law, rather than the law subject to the Government. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.
2. Equality before Law
The attribute of “Rule of Law” Dicey stated was “equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.”13 The second principle emphasizes everyone, including the government, irrespective of rank, shall be subject to the same law and courts. This element is interpreted to be misguided and facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society, there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may exercise prerogative powers which may defeat the rights of individuals. The police have powers over and above the citizen. Members of Parliament have immunity from the law of defamation.
Prof. Dicey states that, there must be equality before the law or equal subjection of all classes to the ordinary law of the land. He criticised the French legal system of droit Administrative in which there were separate administrative tribunals for deciding the cases of State Officials and citizens separately.
3. Predominance of Legal Spirit
The Third meaning of the rule of law is that the general principles of the constitution are the result of juridical decisions determining file rights of private persons in particular cases brought before the Court.
Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or human or basic rights) such as right to personal liberty, freedom from arrest etc. According to him documentary guarantee of such rights is not enough. Such rights can be made available to the citizens only when they are properly enforceable in the Courts of law, For Instance, in England there is no written constitution and such rights are the result judicial decision.
Rule of Law under Indian Constitution:
Rule of law has played a great role to develop Indian democracy. When Indian constitution was frame they had two options e.g. USA & England. They adopted some provisions from USA and some from England. Our constitutional founder fathers adopted the Rule of Law from England and incorporate so many provisions in Indian constitution.
- Indian Constitution is supreme no one is above Indian constitution. All three organs follow constitution if any organ does something in the violation of the constitution all such acts will be ultra vires.
- The preamble of The Constitution is also tells about Rule of Law.
- Part- III and all fundamental Rights come under the Rule of Law, which are enforceable by Law. If these are violated we can go to the Supreme Court and High court under Article 32 &226.
- The term Law includes all orders, rules, regulations, by laws, notice and customs. It expects that all these will be according to Constitutional provisions if they will against, under article-13 they will be declare unconstitutional and void.
- In the Constitution of India guaranteed certain rights which can be enforced by the courts. At this Juncture, we may consider the position prevailing in India as regards the third principle of Dicey‟s doctrine of Rule of Law, i.e., predominant of legal spirit. Until this principle was being considered in the context of interpreting the provisions of the Constitutions.
- In our Constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court.
- The doctrine of Rule of Law has been adopted in Constitution of India. The principles of Rule of Law i.e. justice, equality and liberty are enriched in the Constitution of India. The Constitution of India is above all the laws implemented in Indian Territory and any law made by the central government or by the state government must be in confirmation with the Constitution of India. If any law made by the legislation under the jurisdiction of India which is against the mandates of the constitution, the law would be void. The constitution of India guarantees equality before the law, as an aspect of the rule of law, under Article-14.
- Under Article 32, the Supreme Court has power to issue writs in the nature of Habeas Corpus, mandamus, prohibition, quo warrantor and certiorari.
- Rule of Law’ Article 15 and 16 of right to equality and Article 19, 20 and 21 in form of right to life and liberty are provisions of our constitution to this affect.
- In India, no one has very arbitrary power, except the powers given by the law. The constitution is the Supreme Court law of the land and even the government derives its authority from it. This effectuates the supremacy of law.
- Everyone, in India are subject to same laws, without any discrimination, court takes into account no rank or condition
However, the president and the governors (under Article 361) are given special exemptions. Armed forces personnels are treated by armed laws, officials are given same immunities etc. But these provisions do not negate the effectiveness of the rule of law in India, because their provisions are also made by laws, under various provisions of the constitution. From a poor person to the president, be it a police constable or a collector, are treated by law.
Thus, the Indian constitution effectively applies the rule of law. The Supreme Court in the case of India Nehru, Gandhiji vs. Raj Narain – 1975 held that the rule of law embodied in Article 14 is the ‘basic structure’ of the Indian constitution and hence it cannot be destroyed even by an amendment of the constitution under Article 368 of the constitution.