Basic Constitutional
Principles
BY KALYANI ABHYANKAR
Definition of Rule of Law
► The principle that all individuals and institutions are subject to and
accountable to law that is fairly applied and enforced.
► Sir Edward Coke
► Established the concept of the rule of law during James I’s reign.
► Asserted that the King should be under God and the Law.
Magna Carta 1215
► No free man shall be taken or imprisoned or disseised or exiled or in
any way destroyed, nor will we go or send for him, except under a
lawful judgment of his peers and by the law of the land.
A.V. Dicey’s Theory
► Developed in his work "An Introduction to the Study of the Law of the
Constitution" (1885).
► Key Principles:
► Supremacy of law: Law prevails over arbitrary power.
► Equality before the law:
► Equal subjection of all classes to the ordinary law of the land.
► Predominance of legal spirit:
► Decisions are based on principles derived from legal history.
Rule of Law in the English
Constitution
► Fundamental Principle Ensures that no one is above the law,
including the government
Rule of Law in the US Constitution
► Acceptance and Application The rule of law is embedded in the US
Constitution through checks and balances and judicial review.
Rule of Law in the Indian Constitution
► Preamble, Fundamental Rights, and Directive Principles of State Policy
► .Article 14: Equality before the law and equal protection of the laws.
Significance in Administrative Law
► Entick v. Carrington (1765) – UK
► Facts:
► John Entick's home was searched and his papers were seized by agents of
the King, acting under a general warrant.
► Entick sued the agents for trespass.
► Judgment:
► The court held that the actions of the agents were illegal because they had
no legal authority to issue the warrant.
► Case: Kesavananda Bharati v. State of Kerala (1973)
► Scenario:
► The government tries to amend the Constitution to remove certain
fundamental rights.
► Legal Principle:
► The Supreme Court ruled that Parliament cannot alter the basic structure of
the Constitution.
► A.V. Dicey’s Theory Developed in his work "An Introduction to the
Study of the Law of the Constitution" (1885).
► Three Key Principles:
► Supremacy of law
► Equality before law
► Judge-made Constitution
Supremacy of Law
► Explanation: Absolute supremacy or predominance of regular law as
opposed to arbitrary power.
► Government actions must be authorized by law.
► Dicey's View: "Wherever there is discretion, there is room for arbitrariness.
► "Government should be subject to the law, not above it.
► Key Quote:
► A man may be punished for a breach of law, but can be punished for
nothing else.“
► Significance: Ensures no one, including government officials, can act above
the law.
Equality before Law
► Explanation:
► Equal subjection of all classes to the ordinary law of the land administered by
ordinary courts.
► No separate legal systems for different classes or officials.
► Dicey's Critique:
► Opposed to the French system of droit administratif with special tribunals for government
officials.
► Key Quote:
► "Every official from the Prime Minister down to a constable... is under the same
responsibility for every act done without legal justification as any other citizen.“
► Significance :Reinforces that all individuals and officials are equally accountable under
the law.
Judge-made Constitution
► Explanation:
► Rights and liberties in England are a result of judicial decisions rather than written
guarantees.
► Courts play a crucial role in protecting individual rights.
► Dicey's View:
► Judicial decisions in concrete cases secure rights more effectively than mere declarations in
documents.
► Key Quote:
► "Our Constitution, in short, is a judge-made Constitution and it bears on its face all the
features, good and bad, of a judge-made law."
► Significance:
► Emphasizes the importance of judicial independence and the separation of powers.
Application of the doctrine
► Definition: The rule of law ensures that no one is above the law,
including government officials.
► Application: The doctrine is enforced through judicial decisions in
specific cases.
Wrongful arrest
► Explanation:
► If an individual is wrongfully arrested by the police, they can file a lawsuit for
damages.
► Example:
► The police can be sued as private individuals for wrongful actions.
Wilkes v. Wood (1763)
John Wilkes, an MP, had his property searched and seized under a general
warrant issued by the Secretary of State.
► Outcome:
► The court held that Wilkes could sue for trespass, even though the actions
were taken under a ministerial order.
► Significance:
► Reinforced that government officials are not above the law.
Trespass and Illegal Orders
If a person's land is illegally acquired under an invalid order, they can sue for
trespass.
► Example:
► The individual can bring an action against anyone attempting to execute the
illegal order.
Advantages and Merits of Dicey’s
Thesis on the Rule of Law
► Introduction to Dicey’s Thesis
► Emphasizes the doctrine of the rule of law as a tool to keep administrative
authorities within limits.
► Accepted broadly across legal systems as a constitutional safeguard.
► Supremacy of Law
► Recognizes that the government must be subject to the law.
► Opposes arbitrary and unfettered discretion by governmental authorities.
► Protects citizens' rights from interference by government actions.
► Equality Before Law
► Emphasizes that everyone is equal before the law.
► Based on the maxim: "However high you may be, Law is above you."
► Ensures a democratic polity where all individuals are treated equally
under the law.
► Role of Judiciary
► Highlights the judiciary's role in enforcing individual rights and personal
freedoms.
► Stresses that judicial enforcement is crucial even if rights are not
explicitly stated in a written Constitution.
► Cautions against the potential futility of statutory or constitutional
declarations without judicial enforcement.
Limitations and Criticisms of Dicey’s
Rule of Law
► Dicey’s rule of law accepted as a “necessary constitutional safeguard”
► Criticisms and limitations noted in modern legal systems
► Criticism:
► Dicey’s principles were results of “political struggle” not “logical
deductions”
Arbitrary vs. Discretionary
Power
► First Rule Criticism:
► Dicey equated rule of law with absence of both arbitrary and
discretionary powers
► Misconception: “Wherever there is discretion, there is room for
arbitrariness”
► Clarification: Discretionary power is necessary for modern welfare
states
Discretion in Governance
► Key Insight:
► Law vs. Discretion: Law ends where discretion begins (Davis)
► Discretion can lead to either beneficence or tyranny, justice or injustice
► Conclusion: All governments operate with a mix of laws and
discretionary powers
Misunderstanding Droit Administratif
► Second Rule Criticism:
► Dicey’s misunderstanding of French administrative law (droit
administratif)
► Reality: French system effective in controlling administrative power
abuses
► Fact: Conseil d’Etat is a judicial body scrutinizing administration
Equality Before Law
► Observation:
► Administrative tribunals in Dicey’s time operated under special laws
► Crown's immunity under “The King can do no wrong”
► Conclusion: True “equality before law” was not present even in
England
Rule of Law Under the Indian
Constitution
► Dicey’s Rule of Law in India
► Key Points:
► Dicey’s principles incorporated in the Indian Constitution
► Preamble: Ideals of justice, liberty, and equality
► Fundamental Rights
► Part III:
► Concepts of justice, liberty, and equality as enforceable fundamental
rights
► Judicial review: High Courts and Supreme Court enforce these right
► Constitutional Supremacy
► Principle:
► The Constitution is supreme
► All three government organs (legislature, executive, judiciary) act in
accordance with it
► Judicial Review and Checks on Power
► Mechanism:
► Abuse of power or mala fide actions by the government can be quashed by
courts
► Article 13: All laws must comply with the Constitution or be declared ultra vires
► Presidential Oath and Legal Protections
► Key Provisions:
► President’s oath: Preserve, protect, and defend the Constitution
► No deprivation of life or personal liberty except by lawful procedure
► Equality Before the Law
► Maxim:
► "The King can do no wrong" does not apply in India
► Government and public officials are subject to ordinary courts and legal
processes
► Public Service and Legal Accountability
► Principle:
► Equality in public service
► Suits for breaches of contracts and torts by public authorities can be filed in
ordinary courts
► Doctrine of Rule of Law
► Basic Structure:
► Rule of law is a basic structure of the Constitution, cannot be abrogated or
destroyed
► Balances political independence, social equality, economic development, and
individual liberty
► Administrative Authorities
► Observation by Ramaswamy J:
► Extensive interference by administrative authorities in various fields
► Large-scale delegation of legislative and judicial powers to administrative
bodies
► Discretionary Powers
► Insight:
► Wide discretionary powers for national planning (land ceiling, control of
industries, taxation)
► Encroachments on liberty by statutes like Preventive Detention Act, MISA, NSA
Dicey’s Third Principle
► Judicial independence and judge-made Constitution
► Predominance of legal spirit
► Case Reference:
► ADM, Jabalpur v. Shivakant Shukla (Habeas Corpus case)
► Emergency Proclamation
► 25 June 1975: Emergency declared by Indira Gandhi’s Government due
to "internal disturbances"
► Article 358: Suspension of Article 19 rights
► Article 359: Suspension of enforcement of Articles 14, 21, and 22
Detentions under MISA
► Detention of political leaders under Maintenance of Internal Security
Act, 1971 (MISA)
► Detained individuals not informed of grounds for detention
► Writ petitions filed challenging detentions
Government's Preliminary Objection
► Government claimed writ petitions for habeas corpus were invalid as
Article 21 enforcement was suspended
► High Court Rulings
► Decisions:
► Various High Courts overruled government’s objection
► Supreme Court Appeal
► Bench:
► Five-judge Constitutional Bench: Ray CJ, Khanna, Beg, Chandrachud,
and Bhagwati JJ
Supreme Court's Narrow Issue
► Core Question:
► Whether rule of law exists in India apart from Article 21
► Majority Opinion
► Ruling:
► Majority (Ray CJ, Beg, Chandrachud, Bhagwati JJ) said no separate rule
of law exists outside the Constitution
► Article 21 is the rule of law for life and liberty during Emergency
► Rule of law is constitutional and cannot contradict emergency
provisions
► Justice Khanna’s View:
► Rule of law is against arbitrariness
► Exists in all civilized societies, balancing individual liberty and public
order.
► Judicial independence and rule of law integral to Indian Constitution
► Critical balance between constitutional provisions and fundamental
rights
