DICEY'S RULE OF LAW

SUBMITTED BY SUBMITTED TO

ADITI BHAWSAR MR. JAGDISH JENA

SEMESTER V/A FACULTY, ADMINISTRATIVE LAW

ROLL NO. - 728

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

1|Page
INTRODUCTION

“Where the law is subject to some other authority and has none of its own, the collapse of the
state, in my view, is not far off; but if law is the master of the government and the government is
its slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state"

- Plato

The phrase ‘Rule of Law’ treasures Supremacy of Law and it means that all are equal in the eyes
of law. The term is derived from the French phrase ‘la principe de legalite’- the principle of
legality which refers to a government based on principles of law and not of men. Rule of law can
be traced back to Aristotle and has been championed by Roman jurists; medieval natural law
thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu in their
theory of social contracts and German philosophers Kant and Hegel.

The Doctrine of the Rule of Law has laid down the basis for administrative law. The formal
inception of the concept of rule of law goes back to November 3, 1608 at West Minister Hall. At
that wintry morning, the hot discussion was going on between Sir Edward coke and James I. It
was expounded for the first time by Sir Edward Coke, and was developed by Prof. A.V. Dicey in
his book 'The law of the Constitution' published in 1885. A V Dicey in his book The Law of the
Constitution (1885), expanded the doctrine of Rule of Law, and gave three principles that today
stand as the test stone of the rule of law.

Today Rule of Law has pervaded all the societies which are on the way of development. Almost
all the developing countries round the globe have realized and adopted the concept rule of way to
promote good governance. The presence the concept of rule of law is the hallmark of the
strengthened democracy. This concept of rule of law is easy to adopt and practice. Rule of Law
is applicable to every legal or judicial system, every form of Government, democratic or
otherwise, every economic and social order or cultural tradition as long as that particular
Government is subject to the rule of law and not subject to the rule of man. It is only a State,
where rule of law vague, that can uphold the dignity individual and protect their civil, political,
economic, social and cultural rights

2|Page
ORIGIN OF THE RULE OF LAW

Rule of law as a concept is substantive yet dynamic. It was discussed by ancient Greek
philosophers such as Plato and Aristotle around 350 BC. One of the key assumption of Rule of
law “let no man, however high or any government be trusted with power but tie him or it down
by the chains of law” is of old origin.

The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ - the
principle of legality, refers to a government based on principles of law and not of men. Rule of
law is one of the basic principles of the English Constitution and the doctrine is accepted in the
Constitution of U.S.A and India as well. The entire basis of Administrative Law is the doctrine
of the rule of law. Sir Edward Coke, the Chief Justice of King James I’s reign was the originator
of this concept. He maintained that the King should be under God and the Law and he
established the supremacy of the law against the executive and that there is nothing higher than
law.

Later, the concept grew with the passage of time and A.V. Dicey developed it mechanically.
Albert Venn Dicey, a British jurist and constitutional theorist developed the concept in his book
‘The Law of the Constitution’ (1885). His writing on the British Constitution included three
distinct though kindered ideas on Rule of law. According to him, British Constitution, though
unwritten, is founded on rule of law and contains three conceptions. These principles were:

1. Supremacy of Law
2. Equality before Law
3. Predominance of Legal Spirit

1. 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 land1. Dicey was of the view that all individuals
whether if he is a common man or government authority are bound to obey the law. The
government cannot punish anyone merely by its own fiat as it does not enjoy wide, arbitrary or
discretionary powers. Dicey asserted that wherever there is discretion there is room for

1
Chief Settlement Commissioner Punjab v. Om Prakash, 1969 AIR 33.

3|Page
arbitrariness. It implies the absolute power of law, dominance and the supremacy of it. It is
opposed to the influence of arbitrary power and wide discretionary power.

2. Equality before Law

Equality and arbitrariness are sworn enemies; one belongs to the rule of law while the other, to
the whim and caprice of an absolute monarch”2

As per Diecy Rule of law, in the second principle, means the equality of law or equal subjection
of all classes of people to the ordinary law of the land which is administered by the ordinary law
courts. In this sense rule of law conveys that no man is above the law. Even the Government
Officials are under a duty to obey the same law and there can be no other special courts for
dealing specifically with their matters. Every man whatever is his rank or condition is subject to
the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

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 criticized the French legal system of “Droit” administration in
which there were separate administrative tribunals for deciding the cases of State Officials and
citizens separately. He criticizes such system as negation of law. The law cannot discriminate
between people in matters of sex, religion, race etc. No person should be made to suffer in body
or deprived of his property except for a breach of law established in the ordinary legal manner
before the ordinary courts of the land. This doctrine has been also included in the Indian
Constitution in the form of Article 14. The excerpts of which can also be seen in Article 15.

3. Predominance of Legal Spirit

The general principles of the British Constitution, especially the liberties and the rights of the
people must come from traditions and customs of the people and be recognized by the courts in
administration of justice from time to time. 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 Court3.

As per Diecy , in many countries rights such as right to personal liberty, freedom, arrest etc are
provided by the written Constitution of a Country. But in England these rights are a result of the

2
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
3
Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil, 1994 SCC (1) 682.

4|Page
judicial decisions that have arisen due to the conflict between the parties. The constitution is not
the source but the consequence of the rights of the individuals. In including this as a requirement
for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two
principles in the constitution of the country or in its other laws for the state to be one in which
the principles of rule of law are being followed.

There must be an enforcing authority and Dicey believed that this authority could be found in the
courts. The courts are the enforcers of the rule of law and they must be both impartial and free
from all external influences. Thus the freedom of the judiciary becomes an important pillar to the
rule of law. But this principle of Diecy is not strictly applicable in India as in India we consider
the Constitution to be the basic ground work of laws from which all other laws are derived.

CRITICAL ANALYSIS OF DICEY’S RULE OF LAW

Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law imposed and
helped in imbibing a sense of restraint on administration. The government was bound to work
within the legal framework. Further, by stating that the law is supreme, he made every law made
by the legislature supreme, thus, promoting parliamentary supremacy. There cannot be self-
conferment of power as even an ordinary law is supreme. All laws, public or private, are being
administered by the same set of independent and impartial judiciary. This ensures adequate
check on the other two organs. Nonetheless, on the other hand, Dicey completely misunderstood
the real nature of the French droit administrative.

He thought that this system was designed to protect officials, but the later studies revealed that in
certain respects it was more effective in controlling the administration than the common law
system. The reality is that French Conseil d’ Etat is widely admired and has served as model for
other countries as well as for court of justice for European communities. He also did not realize
the need for codification of laws which could lead to more discretion, thus hampering Rule of
Law.

5|Page
RULE OF LAW IN INDIA

The doctrine of rule of law was not known to ancient and medieval India. The king was the
fountain head of justice and the protector of all laws. He was considered to be above the law.
Indian adopted the Common law system of justice delivery which owes its origins to British
jurisprudence, the basis of which is the Rule of Law. In India, the scheme of the Indian
Constitution is based upon the concept of rule of law. Justice R.S. Pathak of the Hon’ble
Supreme Court has observed that

“It must be remembered that our entire constitutional system is founded on the rule of law, and
in any system so designed it is impossible to conceive of legitimate power which is arbitrary in
character and travels beyond the bounds of reason."

The framers of the Constitution were well familiar with the postulates of rule of law as
propounded by Dicey and as modified in its application to British India. It was therefore, in the
fitness of things that the founding fathers of the Constitution gave due recognition to the concept
of rule of law. We are reminded of what Jawaharlal Nehru while addressing International
Congress of Jurists on Jan 5, 1959 said, “Rule of law seems to me synonymous with the
maintenance of civilized existence. Rule of law denotes a way of life and commitment to certain
principles and values.” The Constitution of India intended for India to be a country governed by
the rule of law. It provides that the constitution shall be the supreme power in the land and the
legislative and the executive derive their authority from the constitution.

Thus, in India the Constitution is supreme. The Constitution of India has been made the supreme
law of the country and other laws are required to be in conformity with it. Any law which is
found in violation of any provision of the Constitution, particularly, the fundamental rights, is
declared void.4The preamble of our Constitution clearly sets out the principle of rule of law. The
doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. It lays greater emphasis upon the principles of natural
justice and the rule of speaking order in administrative process in order to eliminate
administrative arbitrariness.

4
Article 13, The Constitution Of India, 1950.

6|Page
The Indian Constitution also incorporates the principle of equality before law and equal
protection of laws enumerated by Dicey under Article 14. The very basic human right to life and
personal liberty has also been enshrined under Article 21. Article 19(1) (a) of the Indian
Constitution guarantees the third principle of the Rule of law. No person can be convicted of any
offence except for violation of a law in force at the time of the commission of the act charged as
an offence is also very well recognized in the Indian Constitution. The principles of double
jeopardy and self-incrimination also found its rightful place in the Constitution. Articles 14, 19
and 21 are so basic that they are also called the ‘golden triangle’ of the Indian Constitution.

The Constitution also ensures an independent an impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Union of
India v. President, Madras Bar Association5, the Supreme Court held that “Rule of Law has
several facets, one of which is that disputes of citizens will be decided by Judges who are
independent and impartial; and that disputes as to legality of acts of the Government will be
decided by Judges who are independent of the Executive." By these methods, the constitution
fulfils all the requirements of Dicey’s theory to be recognized as a country following the Rule of
Law.

The Supreme Court of Indian has further strengthened this mechanism through its various
judgements, the foremost of them being, A D M Jabalpur v. Shivkanth Shukla6. In this case, the
question before the court was ‘whether there was any rule of law in India apart from Article 21’.
This was in context of suspension of enforcement of Articles 14, 21 and 22 during the
proclamation of an emergency. The answer of the majority of the bench was in negative for the
question of law. However Justice H.R. Khanna dissented from the majority opinion. .

Most famously in the case of Kesavananda Bharati v. State of Kerala7, the Supreme Court held
that “Our Constitution postulates Rule of Law in the sense of supremacy of the Constitution and
the laws as opposed to arbitrariness.". The Rule of Law is an essential part of the basic structure
of the constitution and as such cannot be amended by any Act of Parliament, thereby showing

5
AIR 2014 SC 1203.
6
AIR 1976 SC 1207
7
AIR 1973 SC 1461.

7|Page
how the law is superior to all other authority of men. The Supreme Court, thus, enunciated the
rule of law as one of the most important aspects of the doctrine of basic structure.

In Menaka Gandhi v. Union of India8, The Supreme Court declared that Article 14 strikes
against arbitrariness. It was held that “fair play in action has been regarded as a wholesome rule
designed to secure the Rule of Law and the Court should not be too ready to eschew it in its
applicability to a given case”.

In Indira Gandhi Nehru v. Raj Narain9, Article 329-A was inserted in the Constitution under
39th amendment, which provided certain immunities to the election of office of Prime Minister
from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the
basic structure of the Constitution. It was thus, made clear by the court that Rule Of Law is
supreme and the political heads of the country in spite of their powers and priveleges stand
subservient. Mrs. Indira Nehru Gandhi then post this judgement, led to the infamous emergency
and threatened Rule of India in India.

In Bachhan Singh v. State of Punjab10, Bhagwati J. Observed that the rule of law permeates the
entire fabric of the Constitution and indeed forms one of its basic features. The rule of law
excludes arbitrariness; its postulate is “intelligence without passion” and “reason freed from
desire”. Whenever we find arbitrariness or unreasonableness there is denial of rule of law. In the
case of Binani Zinc Limited v. Kerala State Electricity Board and Ors.11, the court declared that
“It is now a well settled principle of law that the rule of law inter alia postulates that all laws
would be prospective subject of course to enactment an express provision or intendment to the
contrary.”

8
AIR 1978 SC 597.
9
1975 AIR 1590.
10
AIR 1980 SC 898.
11
(2004) 1 SCC 195.

8|Page
AN ANALYSIS OF THE SABRIMALA JUDGEMENTS UPHOLDING RULE OF LAW AGAINST SOCIAL

MORALIY

The Supreme Court has delivered one of the most keenly awaited judgment in Indian Young
Lawyers Association and others v. State of Kerala12 commonly known as the Sabarimala case.
The Court has permitted entry of women of all age groups to the Sabarimala temple, holding that
‘devotion cannot be subjected to gender discrimination’. Chief Justice Dipak Misra, Justice R F
Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority and
held that “Women is not lesser or inferior to man. Patriarchy of religion cannot be permitted to
trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith
Religion is basically way of life however certain practices create incongruities.” The court held
that, the principle of constitutional morality basically means to bow down to the norms of the
Constitution and not to act in a manner which would become violative of the rule of law or
reflectible of action in an arbitrary manner.

The controversy over this case, emanates one important aspect of the application of rule of law.
though rule of law triumphed in the present case, but it served subservient social morality. In the
gush of formalism and strict application of principles of Equality and Rule of Law, it is the
researcher’s opinion that the Judiciary blindly treaded the path of social havoc. It did not take
into consideration that India is a land of diversity and culture. To we Indians, some religious and
cultural practices are “core” and owing to the sentimental connect and longevity of these
practices doing away with them by the judges is a misnomer, bound to result in social haphazard.
It must not be forgotten that the theory that the Constitution which is the fundamental law of the
land, is the 'will' of the 'people', while a statute is only the creation of the elected representatives
of the people; when, therefore, the 'will' of the legislature as declared in the statute, stands in
opposition to that of the people as declared in the Constitution - the 'will' of the people must
prevail13. Thus, it is hereby opined that Rule of law must not be formally imposed against the
will and aspirations of the people, especially in a country like India.

12
(2017) 10 SCC 689.
13
Namit Sharma v. Union of India, MANU/SC/0744/2012.

9|Page
CONCLUSION

Rule of law is mostly believed to be a modern concept which is a gift of democracy however it is
something which is fundamental to the very basic idea of good governance. In this century, the
nexus of policy making has largely shifted from the constitutionally designated branches of
government to the bureaucracy. India, through the Preamble and Articles of the Constitution
incorporates the Rule and has also been interpreted by the judiciary through a plethora of cases.
It is right to state that, “The consent of the governed is a value that is basic to our understanding
of a tree and democratic society. Yet democracy in any real sense of the word cannot exist
without Rule of law.” However, it is concluded that the judges must be alert and fore looking and
should take in to considerations a wide amplitude of aspects especially when cases like
Sabrimala Case, comes for adjudication.

10 | P a g e
REFERENCES

1. I.P. Massey, Administrative Law, Eastern Book Company, Lucknow, 9th Edition 2017.
2. SP Sathe, Administrative Law, Lexis Nexis Butterworths, 7th Edition 2004.
3. M.P Jain, Indian Constitution, Lexis Nexis, 7th Edition 2014.
4. Dicey: Law of the Constitution, 8th Ed
5. V.N Shukla, The Constitution Of India, Eastern Book Company, Lucknow, 2004.
6. Dicey, The Law And The Constitution, 1915.

11 | P a g e