Meaning and Origin (A.V. Dicey)

The concept of the Rule of Law is a cornerstone of modern democratic governance and a foundational principle of administrative law. In its simplest form, it means that government should be conducted according to law, and not according to the arbitrary will of individuals. It is the antithesis of tyranny and absolutism. The principle asserts that no one is above the law, including the government itself, and that all actions of the state must have a legal basis.

While the idea has ancient origins, its modern formulation is most famously attributed to the British constitutional scholar Albert Venn Dicey in his 1885 work, "Introduction to the Study of the Law of the Constitution." Dicey articulated the Rule of Law as comprising three distinct but related principles, based on his analysis of the English legal system.

Supremacy of Law

Dicey's first principle emphasizes the absolute supremacy of regular law as opposed to the influence of arbitrary power. It means that no person can be punished or 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 land.

This principle has two key implications:

1. Absence of Arbitrariness: All government actions must be authorized by law. The state cannot act on its own whim or caprice. This principle is a direct check on the misuse of discretionary power by the executive.

2. Requirement of Legal Sanction: No one can be punished unless they have broken a specific, pre-existing law. This upholds the principles of legality and certainty in law and guards against retroactive punishment.

In the Indian context, this is reflected in Article 21 of the Constitution, which states that "no person shall be deprived of his life or personal liberty except according to procedure established by law."

Equality before Law

Dicey's second principle is that all persons, regardless of their rank or position, are subject to the same ordinary law of the land and are amenable to the jurisdiction of the ordinary courts. This means there is no separate law or separate court for government officials.

Key aspects of this principle:

• No One is Above the Law: It implies that government officials, from the Prime Minister to a local policeman, are subject to the same legal duties and liabilities as any ordinary citizen.

• Rejection of Separate Administrative Courts: Dicey was critical of the French system of droit administratif, which had separate administrative courts for deciding disputes between citizens and the state. He believed this created a special status for officials, which was contrary to the principle of equality.

This principle finds its direct expression in Article 14 of the Indian Constitution, which guarantees "equality before the law." While the modern Indian state does have administrative tribunals, the supervisory jurisdiction of the High Courts and the Supreme Court over them ensures that the principle of one legal system is maintained.

Predominance of Legal Spirit

Dicey's third principle asserts that the fundamental rights of individuals are not derived from any written constitution but are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. He believed that the rights of citizens were better protected by an independent judiciary enforcing the common law than by mere paper declarations in a constitutional document, which could be suspended or ignored.

In essence, he argued that the source of individual rights is the law as declared by the courts. The "legal spirit" of the judiciary is the ultimate safeguard of liberty. While the Indian Constitution does contain a chapter on Fundamental Rights, the judiciary's role as their ultimate protector and interpreter (through Articles 32 and 226) upholds the essence of Dicey's third principle.

Modern Concept of Rule of Law

While Dicey's formulation was highly influential, it has been criticized as being too focused on the 19th-century laissez-faire state and inadequate for the modern welfare state. The modern concept of the Rule of Law is much broader and more dynamic. It goes beyond the formal legality of state action and incorporates principles of justice, fairness, and fundamental human rights.

The modern concept, as articulated by jurists like K. C. Davis and the International Commission of Jurists, emphasizes not just that government must act under the law (formal aspect), but also that the law itself must be just and fair (substantive aspect). It is now understood to be a multi-faceted concept that includes both procedural and substantive elements.

Procedural Fairness

The modern Rule of Law insists that the procedures through which laws are made and applied must be fair, transparent, and just. This procedural aspect is crucial for preventing arbitrary governance.

Key elements of procedural fairness include:

• An Independent and Impartial Judiciary: A judiciary free from external pressure is essential to uphold the law and hold the government accountable.

• Principles of Natural Justice: The right to a fair hearing (audi alteram partem) and the rule against bias (nemo judex in causa sua) must be observed in all administrative decisions affecting individual rights.

• Open and Transparent Law-Making: Laws should be made through an open and public process.

• Access to Justice: Individuals must have effective access to legal remedies to challenge the legality of government actions.

The Supreme Court's interpretation of "procedure established by law" in Article 21 to mean a "fair, just, and reasonable procedure" in the Maneka Gandhi v. Union of India (1978) case is a powerful affirmation of the procedural dimension of the Rule of Law in India.

Substantive Safeguards

The modern concept goes beyond procedure to examine the content or substance of the laws themselves. It is not enough for a law to be passed correctly; the law itself must be just and respect fundamental human rights.

Key substantive safeguards include:

• Protection of Fundamental Human Rights: The law must recognize and protect the dignity and basic rights of individuals. A law that is duly passed but violates fundamental human rights would be contrary to the substantive Rule of Law.

• Reasonableness and Non-Arbitrariness: The law itself must not be arbitrary, irrational, or oppressive. The Indian Supreme Court has held that arbitrariness is the antithesis of equality and is, therefore, a violation of Article 14.

• Socio-Economic Justice: The International Commission of Jurists has emphasized that the Rule of Law in modern societies must also be concerned with creating the social, economic, and cultural conditions under which individuals can achieve their legitimate aspirations and dignity. This includes ensuring basic necessities and a minimum standard of living.

In summary, the modern Rule of Law is a dynamic concept that demands that the state must not only act under the law but that the law itself must embody the principles of justice and equity. It is the foundation upon which the entire edifice of Administrative Law is built.

Administrative Action Under the Rule of Law

The relationship between the Rule of Law and administrative power is central to administrative law. The modern welfare state requires a powerful and effective administration to perform its vast functions. However, this concentration of power in administrative bodies carries an inherent risk of misuse and arbitrariness. The Rule of Law acts as the primary constitutional and legal principle that disciplines and controls this power, ensuring that administrative action is exercised in a manner that is lawful, fair, and accountable.

No arbitrary power

The first and most fundamental command of the Rule of Law to the administration is that it must not wield arbitrary power. This principle of non-arbitrariness permeates all aspects of administrative action.

• Requirement of Legal Authority: Every action taken by an administrative authority must be sanctioned by law. The administration has no inherent powers; it must be able to point to a specific provision in the Constitution or a statute that authorizes its action. Any action taken without legal authority is ultra vires (beyond power) and void.

• Control over Discretion: Administrative authorities are often granted discretionary powers, but the Rule of Law dictates that this discretion is never absolute. It is a power to be exercised according to law, not according to personal whim or fancy. As established by a long line of judicial precedents, discretion must be exercised:

  • Reasonably and rationally.
  • In good faith (bona fide).
  • For the purpose for which the power was granted.
  • Based on relevant considerations, not irrelevant ones.

  Any decision that is arbitrary, irrational, or made in bad faith is considered a violation of the Rule of Law and is subject to judicial review.

• Equality and Non-Discrimination: The Rule of Law demands that the administration treat all individuals equally and without discrimination. Administrative actions must be based on objective and rational criteria, not on prejudice or favouritism. This is the essence of Article 14 of the Indian Constitution, which has been interpreted to be a guarantee against arbitrariness in state action.

Accountability of administrative bodies

The second core component of the relationship is accountability. The Rule of Law requires that administrative bodies must be answerable for their actions. This accountability operates through various mechanisms, both judicial and non-judicial.

• Judicial Accountability: This is the most crucial form of accountability. The power of judicial review allows the courts to scrutinize administrative actions and ensure their legality and fairness. Any citizen who is aggrieved by an administrative decision can approach the High Court or Supreme Court and seek a remedy. This makes the administration accountable to the judiciary for its adherence to the law.

• Procedural Accountability: The Rule of Law mandates that administrative bodies follow fair procedures, especially when their decisions affect individual rights. The principles of natural justice (the right to be heard and the rule against bias) are a form of procedural accountability, forcing decision-makers to justify their actions through a transparent process.

• Political Accountability: In a parliamentary democracy like India, the executive is accountable to the legislature. The Parliament can question ministers about the actions of their departments, debate administrative policies, and scrutinize delegated legislation. This ensures a degree of democratic control over the administration.

• Institutional Accountability: Other institutions like the Comptroller and Auditor General (CAG), the Central Vigilance Commission (CVC), and Ombudsmen (like the Lokpal and Lokayuktas) are created to enforce financial propriety and investigate allegations of corruption and maladministration, further strengthening accountability.

Rule of Law in Indian Context

The Rule of Law is not a foreign concept imported into India; it is deeply embedded in the Indian constitutional framework. The framers of the Constitution created a document that provides for a government of laws, not of men. The Supreme Court of India has played a pivotal role in developing and fortifying the Rule of Law as a core tenet of Indian jurisprudence.

Judicial interpretation

The Indian judiciary has consistently interpreted the Constitution in a manner that strengthens the Rule of Law. Through creative and purposive interpretation, the courts have expanded the scope of individual rights and the accountability of the state.

Key Landmark Cases:

• A.K. Gopalan v. State of Madras (1950): In this early case, the Court took a narrow view of "procedure established by law" in Article 21, holding it to mean any procedure laid down by a validly enacted law. This was a more formalistic view of the Rule of Law.

• Maneka Gandhi v. Union of India (1978): This case marked a revolutionary shift. The Supreme Court overruled its earlier decision and held that the "procedure established by law" under Article 21 must be "fair, just, and reasonable," not arbitrary or fanciful. This infused the concept of natural justice and substantive due process into Article 21, significantly broadening the scope of the Rule of Law.

• E.P. Royappa v. State of Tamil Nadu (1974): In this case, the Court established the vital link between the Rule of Law and the right to equality. Justice Bhagwati famously observed that "Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies..." This judgment made arbitrariness a ground for challenging any state action under Article 14.

These interpretations have transformed the Rule of Law from a mere formal principle of legality into a substantive guarantee of justice, fairness, and reasonableness in all state actions.

Basic Structure Doctrine

The most powerful assertion of the Rule of Law by the Indian judiciary is the development of the Basic Structure Doctrine. This doctrine, propounded in the historic case of Kesavananda Bharati v. State of Kerala (1973), holds that while the Parliament has the power to amend the Constitution under Article 368, this power is not unlimited. Parliament cannot amend the Constitution in a way that alters or destroys its "basic structure" or fundamental features.

The Supreme Court identified several features as part of this basic structure, including:

• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive, and judiciary
• Federal character of the Constitution

Crucially, the Court has repeatedly held that the Rule of Law itself is a fundamental element of the basic structure. In subsequent cases, judicial review and the independence of the judiciary have also been declared to be part of the basic structure.

Significance of the Doctrine for Rule of Law:

The Basic Structure Doctrine acts as the ultimate constitutional safeguard for the Rule of Law. It ensures that the core principles of a government under law cannot be legislated away, even by a constitutional amendment passed with the requisite majority. It places a substantive limit on the power of the legislature, reinforcing the idea that even the sovereign law-making body is subject to certain higher constitutional principles. This doctrine is a unique and powerful contribution of the Indian judiciary to constitutional jurisprudence and is the final guarantee that India will always be governed by the Rule of Law.