RULE OF

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Acknowledgement

I would like to express my heartfelt gratitude towards my teacher Dr
Jasneet Walia for helping me in the making of this project and for giving
me an opportunity to increase my knowledge in the subject .
I would also like to thank the department of UILS for providing me with
a chance to hone my reading writing and speaking skills.
Thank You























Introduction

The term Rule of Law means the principles of legality which refers to a government
based on principles of law and not of men. In this sense the concept of the rule of law
is opposed to arbitrary powers.
Rule of law is one of the basic principles of the English Constitution. This doctrine
has been enshrined in the Constitution of U.S.A. and in the Constitution of India as
well. The entire basis of administrative law is the concept of rule of law. Sir Edward
Coke, The Chief Justice in James ls reign is said to be the originator of this great
principle. In a battle against the King, he succeeded in maintaining that the King must
be under the God and the law and thus vindicated the supremacy of law against the
executive. Dicey developed this doctrine of Coke in his classic book, The Law and
the Constitution published in the year 1885.


















Meaning
The concept of rule of law is embedded in the Charter of the United Nations, the
Secretary-General defines the rule of law as" a principle of governance in which all
persons, institutions and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human rights
norms and standards. It requires, as well, measures to ensure adherence to the
principles of supremacy of law, equality before the law, accountability to the law,
fairness in the application of the law, separation of powers, participation in decision-
making, legal certainty, avoidance of arbitrariness and procedural and legal
transparency."
1

The expression rule of law was given prominence by Dicey. According to him, the
rule of law is the one of the cardinal principles of the English system. He attributed
the following three meanings to the doctrine:
I. Supremacy of law;
II. Equality before law; and
III. Predominance of legal spirit.
Supremacy of law- Expounding the first postulate, Dicey states that rule of law
means the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power or wide discretionary power. It excludes the existence of
arbitrariness of prerogative power or even wide discretionary authority on the part of
government. He asserted that the Englishmen were ruled by the law, and by the law
alone; he denied that in England the government was based on exercise by persons in
authority of wide arbitrary or discretionary powers. Dicey claimed, 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 government must mean insecurity for
legal freedom on the part of its subjects. Accordingly Wade also says, The rule of
law requires that the government should be subject to the law, rather than the law
subject to the government.
Equality Before law- Explaining the second postulate of the doctrine of rule of law,
Dicey says 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. In
England, he maintained all persons were subject to one and same law, and there were

1
http://www.un.org/en/ruleoflaw/
no extra ordinary tribunals or special courts for the officers of the government and
other authorities. According to him, courts are supreme throughout the state. In this
connection he criticized the French legal system of Droit Adminis Tratif in which
there were separate administrative tribunals also for deciding cases between the
officials of the state and the citizens. In his view, exemption of civil servants from the
jurisdiction of the ordinary courts of law and providing them with the special tribunals
was the negation of equality.
Predominance of legal Spirit- Explaining the third postulate, Dicey says that the
general principles of the constitution are the result of the judicial decisions of the
courts in England. In many countries rights 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. The constitution is not the
source but consequence of the rights of the individuals. Dicey apprehended that if the
source of fundamental rights of the people in any written constitution, the right can be
abrogated at any time by amending the constitution. In this way the rule of law
postulates judicial supremacy.
2














Modern concept of the rule of law

2
Supra note 1 pp 36 37
The modem concept of the Rule of Law is fairly wide. Davis gives seven principal
meanings of the term Rule of Law :
(1) Law and Order,
(2) Fixed rules;
(3) Elimination of discretion;
(4) Due Process of law or fairness;
(5) Natural Law or observance of the principles of natural justice;
(6) Preference for judges and ordinary cowls of law to executive authorities and
administrative tribunals; and
(7) Judicial review of administrative action.



Rule of Law under the Indian Law
For a democratic government, rule of law is a basic requirement. The rule of law runs
like a golden thread through every provision of the Constitution and indisputably
constitutes one of its basic features; which requires that every organ of the state must
act within the confines of powers conferred upon it by the Constitution and the law.
The rule of law pervades over the entire field of administration.
Rule of law permeates the entire fabric of the Indian Constitution and indeed forms
one of its basic features. Law in the context of the rule of law does not mean any law
enacted by the legislative
authorities, however arbitrary or despotic it may be what is necessary element of the
rule of law is that law must not be arbitrary or irrational and it must satisfy the test of
reason and the democratic form if the polity seeks to ensure this element by making
the framer of law accountable to the people.
Even law can promote arbitrary power. Law and rule of law are two different
concepts. As Justice Khanna emphasised in his celebrated dissenting opinion in the
Habeas corpus case, A state of negation of rule of law would not cease to be such a
state because of the fact that such a state of negation of rule of law has been brought
about by statute.

Every organ if the administration is regulated by the rule of law. The Indian
Constitution embodies the modern concept of the rule of law. The concept of the rule
of law exists in this country by the virtue of the following features:
1. Supremacy of the Constitution- Diceys doctrine of the rule of law has been
accepted and embodied in the constitution of India. In the preamble, our
enunciated the ideals of justice and liberty and equality. The constitution is
supreme and all the three organs of the government, i.e. the legislature, The
Executive and the Judiciary are subordinate to and have to act in accordance
with it. The principle of Judicial Review is enshrined in the constitution and
subjects can approach High Courts and Supreme Court for enforcement of
fundamental rights guaranteed under the constitution. Supreme Court under A.
32 and High Courts under A. 226 can issue writs for enforcement of
fundamental rights.

If the executive or the government abuses the powers conferred on it or if the
action is mala fied, the same can be quashed by the ordinary courts. All rules,
regulations, ordinances, by-laws, notifications, customs and usages are laws
within the article 13 of the constitution. If they are inconsistent or contrary to
any provision of the constitution, they can be declared as the ultra vires by the
Supreme Court and high courts. No person shall be deprived of his life or
personal liberty except according to procedure established by law.
3
The
executive and legislative powers of the state and the union are required to be

3
Article 20
exercised according to the provision of the constitution. The government and
public officials are not above law.
2. Constitutional Requirement of Equality- Equality before law as a postulate
of rule of law has been accepted and adopted under A. 14 of the constitution.
The maxim the king can do no wrong has no application in India. The
government and public authorities are subject to the jurisdiction of ordinary
courts of law and similar wrongs are to be tried and penalized similarly. They
are subject to ordinary legal process. The doctrine of equality is accepted in
public service also.
4
Suits for breach of contract and torts committed by the
public authorities can be filed in the ordinary courts and damages recovered
from the state government or the union government for acts of their
employees.
5

The Supreme Court observed in Som Raj v. State of Haryana
6
that the
absence of arbitrary power is the primary postulate of Rule of Law upon
which the whole constitutional edifice is dependant. Discretion being
exercised without any rule is a concept which is antithesis of the concept.

3. Constitutional Guarantee and Judicial Enforcement of Rights- In the
constitution of India are 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 Diceys doctrine of rule of law, i.e.,
predominance of legal spirit. Until recently, this principle was being
considered in the context of interpreting the provision of the constitution.
But in Chief settlement Commissioner, Punjab v. Om Prakash
7
, it was
observed by the supreme court that, In our constitutional system, the central
and most characteristic feature is the concept of 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
matter into notice

4
Article 300-A
5
Article 299 and Article 300
6
1990 2 SCC 653
7
AIR 1969 SC 33
4. Rule of Law as A Legal Concept- The basic concept of rule of law is not a
defined legal concept. The courts would not declare any positive law to be
invalid on the grounds that it violates the contents of rule of law. However, in
habeas corpus case an attempt was made to challenge the detention orders
during emergency on the ground that they were violate of the principles of the
rule of law as the obligation to act in accordance with rule of law is the
central feature of our constitutional system and is a basic feature of
constitution.
The narrow issue before the Supreme Court was whether there was any
rule of law in India apart from Article 21 of the Constitution.
The majority of the Bench (Ray, C.J., and Beg, Chandrachud and Bhagwati
JJ.) answered the issue in the negative and observed:
The Constitution is the mandate. The Constitution is the rule of law. There
cannot be any rule of law other than the constitutional rule of law. There
cannot be any pre-Constitution or post-Constitution rule of law which can run
counter to the rule of law embodied in the Constitution, nor there any
invocation to any rule of law to nullify, the constitutional provisions during
the time of emergency. Article 21 is our rule of law regarding life and liberty.
No other rule of law can have separate existence as a distinct right. The rule of
law is not merely a catchword or incantation. It is not a law of nature
consistent and invariable at all times and in all circumstances. There cannot be
a brooding and omnipotent rule of law drawing in its effervescence the
emergency provisions of the Constitution. In this way the majority judgment
stands for the proposition that the doors of courts during emergency are
completely shut. However, it is gratifying to note that the concept of Rule of
Law can be used as a legal concept.
Justice Khanna, however, did not agree with the majority view and gave a
powerful dissenting judgment. His Lordship observed: Rule of law is
antithesis of arbitrariness (It is accepted) in all civilised societies (It) has come
to be regarded as the mark of free society. It seeks to maintain a balance
between the opposite notions of individual liberty and public order. Even in
the absence of Article 21 in the Constitution, the state has got no power to
deprive a person of his life or liberty without the authority of law. This is the
essential postulate and basic assumption of the rule of law and not of men in
civilised nations. Without such sanctity of life and liberty, the distinction
between a lawless society and one governed by laws would cease to have any
meaning. As observed by Friedmann in Law in a changing society, in a
purely formal
sense, any system of norm based on a hierarchy of orders, even the organised
mass murders of Nazi regime qualify as law. This argument, cannot however,
disguise reality of the matter that hundreds of innocent lives have been taken
because of the absence of rule of law. A state of negation of rule of law would
not cease to be such a state because of the tact that such a state of negation of
rule of law has been brought about by statute. Absence of the rule of law
would nevertheless be absence of the rule of law even though it is brought
about by a law to repeal all laws. It is respectfully submitted that the majority
view in the habeas corpus case is contrary to the doctrine of Rule of Law. The
majority failed to consider in its proper perspective the notable fact that
Article 21 (i.e., the written Constitution) does not confer a right to life or
personal liberty. The said right inheres in the body of every living person and
Article 21 or for that purpose any written Constitution is not the sole
repository of the right to life and personal liberty and in these circumstances
the executive can never take away the said right.
5. Rule of Law as A Feature of Basic Structure- In Kesavananda Bharti vs.
State of Kerala
8
some of the judges constituting majority were of the opinion
that the rule of law was an aspect of the doctrine of basic structure of the
constitution, which even the plenary power of Parliament cannot reach to
amend.
In Indira Gandhi Nehru vs. Raj Narain
9
- 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

8
AIR 1973 SC 1461
9
AIR 1975 SC 2299
declared Article 329-A as invalid since it abridges the basic structure of the
Constitution.

6. Elimination of Arbitrariness, and Not of Discretion-From the Indian
Conception of Rule of Law is eliminated arbitrariness and not discretion. As
Davis has observed: All Governments in history has been governments of
laws and of men. Rule alone untempered by discretion cannot cope with the
complexities of Modern government and of modern justice. Discretion is our
principal source of creativeness in government and in law. It therefore
becomes necessary to confine structure and check discretion in order to uphold
the principles of rule of law in administration, so that the discretionary power
does not degenerate into arbitrary power. As Justice Matthew has said in
Indira Nehru Gandhi v. Raj Narain that there is in the world no government or
legal system which has no discretion. It is not possible that a government
maybe composed of law alone, but not of men and those men may not be
given discretion. All the governments are composed of law and men. The
needs of modern government are to make wide discretionary power in
escapable. If discretion is taken as arbitrariness, there may not be a single
political system having rule of law. Discretion is essential for the viability of
nay political system. The only important aspect is misuse of discretion.
Accordingly expounding the concept of rule of law in Supreme Court
Advocates on Record Association v. Union of India
10
, the Supreme Court
laid down that rule of law does not rule out existence of discretionary power
completely. In this case, the court held the view that vesting of absolute power
in one individual is not warranted under the constitutional scheme for the rule
of law to become realistic, there has to be room for discretionary authority
within the operation of the rule of law, even though it has to be reduced to
minimum extent necessary for proper governance and within the areas of
discretionary authority, the existence of proper guidelines or norms of general
application excludes any arbitrary exercise of discretionary authority. In such
a situation, the exercise of discretionary authority in its application to
individuals, according to proper guidelines or norms further reduces the area

10
AIR 1994 SC 268
of discretion, but to that extent discretionary authority has to be given to make
the system workable.
7. Compliance with the requirement of law- In a rule of law society, the
executive is required to observe and comply with the requirement of law. In
Sambamurthy v. State of A.P.
11
arose a question of great legal importance
having far reaching effect. In this case the Supreme Court held that Article
371-D (5) (Proviso) of the Constitution violates Rule of Law which is a basic
structure and essential feature of the Constitution. This constitutional
provision empowered the State Government of Andhra Pradesh to nullify any
decision of the Administrative Services Tribunal. Declaring the provision
unconstitutional, the Supreme Court observed: "It is a basic principle of the
rule of law that the exercise of power by the executive or any other authority
must not only be conditioned by the Constitution but must also be in
accordance with law and the power of judicial review is conferred by the
Constitution with a view to ensuring that the law is observed and there is
compliance with the requirement of law on the part of the executive and other
authorities. It is through the power of judicial review conferred on an
independent institutional authority such as the High Court that the rule of law
is maintained and every organ of the state is kept within the limits of the law.
Now if the exercise of the power of judicial review can be set at naught by the
state government by overriding the decision given against it, it would sound
the death-knell of the rule of law. The rule of law would cease to have any
meaning because then it would be open to the state government to defy the
law and get away with it. The proviso to clause (5) of Article 371-D is
therefore clearly violative of the basic structure doctrine."
8. Fairness in action.One of the advances made in the realm of the rule of
law is the requirement and enforcement of fairness in the action of
administration. It was noticed that with the growth of governmental functions
it was not possible for government by itself to undertake to regulate and
control, say, the services, industries, professions, education and other similar
activities and that persons possessing special skills and experience rather than
politicians who compose government should do it. Thus there grew congeries

11
AIR 1987 SC 357
of Commissions, Boards, Tribunals and bodies to deal with these and many
other matters. In such a ..,.on text it is heartening to note that courts' are
making all concerted efforts to establish a rule of law society in India by
requiring 'fairness' in every aspect of the exercise of power by state. Such
development which has revolutionized administrative law owes its genesis to
the decisions of the Supreme Court in R. D. Shetty v. international Airport
Authority
12
. and Ajay Hasia v. Khalid Mujeeb Sehravardim
13
. These have
laid down that not only the State Government but also every instrumentality or
agency of the State Government is subject to the constitutional limitations by
the Fundamental Rights and of the limitations so imposed is that every action
of the state or its instrumentality or agency must be fair.
9. Public interest in security of social welfareThe rule of law notion as
evolved by the do Courts extends to the protection of social welfare as well.
With this end in view the Supreme Court in Veena Sethi v. State of Bihar
14
.
held that the reach of the rule of law extended to the poor and the down-
trodden, the ignorant and illiterate who constitute the large bulk of humanity
in India. In this case the court ruled that the rule of law does not exist merely
for those who have the means to fight for their rights and very often for
perpetuation of the status quo which protects and preserves their dominance
and permits them to exploit a large section of the community. Such a ruling
was given on basis of a letter written by the Free Legal Aid Committee,
Hazaribagh. Bihar drawing its attention to unjust died and illegal detention of
some prisoners in jail for about two or three decades. Similarly in People's
Union for Democratic Rights v. Union of India (Asiad case)
15
a petition by
a public spirited organisation on behalf of persons belonging to socially and
economically weaker section employed in the construction work of various
projects connected with the Asian Games, 1982 complaining of violation of
various provisions of labour laws was held maintainable. In the opinion of the
court, rule of law is intended to promote and vindicate public interest which
demands that violations of constitutional or legal rights of large number of
people who are poor, ignorant or in a socially or economically disadvantaged

12
AIR 1979 SC 1728
13
AIR 1981 SC 487
14
AIR 1983 SC 339
15
AIR 1982 SC 1473
position should not go unnoticed and unredressed. That would be destructive
of the rule of law which forms one of the essential elements of public interest
in any democrative form of government. The rule of law does not mean that
the protection of law must be available only to a fortunate few or that the law
should be allowed to be prostituted by the vested interests or protecting and
upholding the status quo under the guise of enforcement of their civil and
political rights. The poor too have civil and political rights and rule of law is
meant for them also in reality. In this way, under the concept of rule of law,
the idea of justice is no more confined to the rights of the individual only but
has been extended to the socio-economic spheres as well.
10. National policy of reservation for Backward Classes and constitutional
viability of creamy-layerIn the Mandal Commission Case, 1992 the
Supreme Court has upheld the national policy of reservation in favour of
socially and educationally backward classes but at the same time has also
required identification and exclusion of creamy layer for extension of the
reach of Rule of law to the disadvantaged section of people'.
11. Pervasiveness of the concept of rule of law.The Constitution of India
embodies the modern concept of the rule with the establishment of a judicial
system which should be able to work impartially and free front all influences.
The rule of law pervades over the entire field of administration and every
organ of the state is regulated by the rule of law. The concept of this rule of
law would lose its vitality if the instrumentalities of the state are not charged
with the duty of discharging their function in a fair and lust manner.
According to Goodhart, although much emphasis is placed upon the
supremacy of the legislature in some countries of the West, the Rule of Law
does not depend upon contemporary positive law it may be expressed in
positive law but essentially it consists of values and not institutions it connotes
a climate of legality and legal order in which the nations of the West live and
in which they wish to continue to live.
Judicial activism as valiant enterprise is seen as is part of the efforts of
Constitutional courts in India to establish rule of law society which postulates
that no matter how high a person may be the law or always above him The
Court is also making efforts to link rule of law with human rights of the
people. The Court it evolving strategy by which it can force the government
not only submit to law but also create conditions where people can develop
capacities to enjoy there right in proper and meaningful way. It is the
responsibility of the public administration for effective implementation of rule
of law and constitutional commands which effectuate fairly the objective
standard* laid down by law." Every government servant holding public power
is a trustee of the society and accountable for due effect national goals."
Although all the merits are unhurt in the concept of the Rule of Law, the only
negative aspect of the concept is that respect for law degenerates into rigidity
of legalism which is injurious to the nation.
16











Conclusion

16
Supra note 1 pp 39-45

The rule of law in the Indian society has not achieved the intended results is that the
deeply entrenched values of constitutionalism or abiding by the Constitution of India
have not taken roots in the society. Corruptions, Terrorism etc. are all antithesis to
Rule of Law. In recent times, common law traditions, the Constitution of India, and
the perseverant role of the judiciary have contributed to the development of rule of
law. But on occasions we have slipped back into government by will only to return
sadder and wiser to the rule of law when hard facts of human nature demonstrated the
selfishness and egotism of man and the truth of the dictum that power corrupts and
absolute power corrupts absolutely. A few examples of how our judicial system has
upheld the rule of law and ensured justice is clearly seen in the creation of new
avenues seeking remedies for human rights violations through PIL pleas and
promotion of genuine interventions by the judiciary in the areas of bonded and child
labour, prostitution, clean and healthy environment etc. but on the darker side there
have been violations of fundamental rights as well.
















BIBLIOGRAPHY

1. J.J.R. Upadhayaya , Administrative Law, Latest Edition Central
law Agency, Allahabad , 2013

2. Manoj Sharma , Indian Administrative Law , Anmol Publishers
, New Delhi , 2004

3. N.K. Jayakumar, Administrative Law , Prentice Hall Of India ,
New Delhi , 2009

4. http://lawjournal.mcgill.ca/userfiles/other/433216-Walters.pdf

5. https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/309
3/International-Rule-Law-Final.pdf?sequence=1

6. http://www.un.org/en/ruleoflaw/