Rule of Law in India Dicey Theory Concepts and Case Laws
The Rule of Law: Dicey's Theory, Modern Concepts & Application in India
In general terms, Rule of Law means that no man is above the law irrespective of his rank and position. It refers to a government based on principles of law and not of men.
Origin of the Concept of Rule of Law
Originator of the concept of rule of law was Sir Edward Coke, the Chief Justice in JAMES I's reign, it was systematically formulated by AV Dicey in his book An Introduction to the Study of the Law of the Constitution which was published in the year 1885.
AV Dicey's Concept of Rule of Law
According to Dicey's theory, rule of law has three pillars based on the concept that "a government should be based on principles of law and not of men", those principles are:
Supremacy of Law
Dicey stated that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary power on the part of the government. Dicey observed, "wherever there is discretion, there is room for arbitrariness."
Criticism - Dicey equated supremacy of rule of law with absence of not only arbitrary powers but even of discretionary powers. According to him, "wherever there is discretion, there is room for arbitrariness". He thus failed to distinguish arbitrary power from discretionary power. Though arbitrary power is inconsistent with the concept of rule of law, discretionary power is not, if it is exercised properly. No modern welfare State can work effectively without exercising discretionary powers.
Equality before Law
Dicey stated that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. No special privileges, immunity for anyone nor any special law for any classes.
Dicey criticised the French legal system of droit Administratiff in which there were separate law and separate administrative tribunals (Cunseil' de etat) for deciding the cases of State Officials and citizens separately.
Criticism - Dicey misunderstood the real nature of droit administratif. He carried an impression that administrative courts of France, including Conseil d'Etat conferred on government officials special rights, privileges and prerogatives as against private citizens. But it was not so. This system was able to provide expeditious and inexpensive relief and better protection to citizens against administrative acts or omissions. The French system in many respects proved to be more effective in controlling abuse of administrative powers than the common-law system.
While equality before the law is a fundamental principle of justice in democratic societies, there are a few exceptions or situations where some individuals or groups might be treated differently under the law. These exceptions usually stem from specific legal, social, or practical considerations. Here are a few examples:
- Special Treatment for Vulnerable Groups - Laws may treat certain vulnerable groups, like children, the elderly, or people with disabilities, differently to ensure protection or provide additional support. For instance, juvenile offenders are often tried under different rules than adults, and elderly citizens may have different legal rights related to health care and housing.
- Affirmative Action and Positive Discrimination - In some countries, affirmative action programs exist to promote equality by providing preferential treatment to historically marginalized or disadvantaged groups, such as backward classes, racial minorities or women. These laws are designed to address historical injustices and social inequalities but may lead to differential treatment under certain conditions.
- Diplomatic Immunity - Diplomats and foreign government officials often enjoy immunity from local laws under international agreements (such as the Vienna Convention). This is done to facilitate international relations and diplomacy.
- Sovereign Immunity - Sovereign immunity is the principle that the state or government cannot be sued in its own courts without its consent. This means that in some cases, the President, government or its agencies might be exempt from legal action, providing an exception to the rule of equality before the law.
- Special Laws for Certain Professions - Certain professions may have special legal frameworks, such as laws governing the conduct of lawyers, judges, or military personnel, which may lead to different treatment in some circumstances. For instance, military personnel may face military tribunals rather than civilian courts for certain offenses.
- Emergency Powers or Martial Law - In exceptional situations, such as during wartime or national emergencies, governments may enact laws that temporarily suspend certain rights and privileges of individuals to maintain public order. During such periods, the government may treat people differently in terms of their rights.
Predominance of Legal Spirit / Judge made Constitution
Dicey stated that in many countries rights such as right to personal liberty, freedom from arrest, freedom of speech and expression, etc. are guaranteed by a written Constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. Thus, Dicey emphasised the role of the courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document, as in the latter case they can be amended, ignored, curtailed or trampled upon.
Modern Concept of Rule of Law
The modern concept of the Rule of Law as given by KC Davis, focuses on administrative law and discretionary powers. Davis emphasized that the Rule of Law should not only be about formal legal structures but also about how laws are applied in practice by administrative agencies. His contributions modernized the traditional Rule of Law by addressing the increasing role of bureaucracy and government discretion in decision-making.
He gave following seven principles of rule of law :
- Law and Order - The most basic meaning of the Rule of Law is the maintenance of law and order in society. It ensures that laws are enforced to prevent anarchy and chaos.
- Fixed Rules - The law should be clear, stable, and predictable to regulate society effectively. Fixed rules prevent arbitrary governance and ensure that individuals and authorities operate within a defined legal framework.
- Elimination of Discretion - To minimize arbitrary decisions, administrative and governmental authorities should have limited discretionary power. The exercise of discretion must be guided by legal principles to prevent misuse of power.
- Due Process of Law or Fairness - Citizens should be treated fairly and justly under the legal system. Procedural fairness ensures that decisions are made after proper hearing and consideration of facts.
- Natural Law or Observance of the Principles of Natural Justice - Legal systems should be guided by moral and ethical standards derived from natural law. Principles like fair hearing (audi alteram partem) and no bias in decision-making (nemo judex in causa sua) must be followed.
- Preference for Judges and Ordinary Courts Over Executive Authorities & Administrative Tribunals - Courts of law should be the primary institutions for dispute resolution and interpretation of laws. Judicial decisions are considered more independent, impartial, and fair than those made by administrative bodies. However, administrative tribunals may be necessary for specialized matters but should not replace the role of courts.
- Judicial Review of Administrative Actions - The judiciary must have the power to review and check administrative decisions. Judicial review upholds the constitutional rights of citizens and ensures that government actions are lawful.
KC Davis's modern concept of Rule of Law recognizes the growing role of administrative authorities and emphasizes the need for legal controls on discretion, fairness in procedures, and judicial oversight. His approach ensures that the law remains just, transparent, and accountable in modern governance.
Rule of Law Under Indian Constitution
Rule of law has been adopted and incorporated in the Indian Constitution and is implicit in the following ways :
- The Preamble itself enunciates the ideals of justice, liberty and equality.
- The Constitution is supreme and all the three organs of the government, viz. legislature, executive and judiciary are subordinate to and have to act in consonance with the Constitution.
- Equality before Law has been explicitly recognized under Article 14, though it has few exceptions.
- Post Maneka Gandhi's case, a person's life and personal liberty under Article 21 cannot be deprived without due process of law.
- Article 13, 32 and 226 recognises the concept of Judicial Review of Legislative, Executive and Administrative Acts.
Landmark Cases
In A.K. Kraipak v. Union of India (1970), SC observed that "Rule of law runs like a golden thread through every provision of the Constitution and indisputably constitutes one of its basic features."
In Indira Nehru Gandhi v Raj Narain (1975), SC held that Article 14 under which Rule of Law is embodied is the basic feature of the Indian Constitution and cannot be destroyed even by an amendment under Article 368. It was laid down that the law of the land is supreme and must succeed over the will of a person.
In ADM Jabalpur v Shivkant Shukla (1976), Justice H. R. Khana in his dissenting judgment observed that even in absence or suspension of specific provision recognising rule of law under the Constitution, it still exist. Without such sanctity to rule of law, the distinction between a lawless society and one governed by laws would cease to have any meaning.
In National Legal Service Authority v UOI (2014), it was held that the rule of law is social justice based on public order. The rule of law strikes a balance between society's need for political independence, social equality, economic development and internal order on the one hand, and the needs of the individual, his personal liberty and his human dignity on the other. It is the duty of the court to protect this rich concept of the rule of law.
