Rule of Law

 Introduction

Politicians, lawyers, economists and policy-makers often use the term “rule of law” to characterize a certain type of legal-political regime. As the pace of globalization has increased in the past two decades, many developing countries have prioritized their policy agendas to promote the rule of law. 

2   Meaning of Rule of Law

The rule of law does not
have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.

68220837

3.       Dicey’s Concept of Rule of Law

Dicey said in 1885, Rule of Law means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even wide discretionary authority on the part of the government. According to Dicey,  Englishmen were ruled by law and law alone and he denied that in Britain the Government was based on exercise by persons in authority of wide discretionary power.

4.       Features of Dicey’s Rule of Law
Dicey’s Rule of Law is one of the most widely accepted concept on Rule of Law. He has put forth three concepts.

a. Doctrine of Supremacy of Law: 

According to Dicey, law is the supreme  and no one can be punished if he has not breached any regular law as opposed to arbitrary use of power. Supremacy of Law' is the central and most characteristic feature of Common Law. Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power.English men are ruled by the Rule of Law and law alone. A man can be punished by rule of law, and by nothing else. According to Professor Wade" Government is a subject of the Rule of Law, rather than the law being a subject of the Government"

b. Doctrine of Equality: 
 Equality  before law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law court. In Britain, he maintained, every person was subject to one and same body of law. He criticized the system of Droit Administratif prevailing in France where there were separate administrative tribunals for deciding cases between  the government and the citizens. He went on to assert that in Britain there was no administrative law. The idea of having separate bodies to deal with disputes in which Government is concerned and keeping such matters out of the purview of the common courts and was unknown to the law of Britain, and indeed was fundamentally inconsistent with the English traditions and customs.
c. Predominance of of Legal spirit
Rights (such as right to personal liberty, freedom from arrest etc.) are the result of judicial decisions in England.The rights are a result of court judgements rather than from being enshrined in the Constitution. The Constitution is a consequence (and not the source) of the rights of the individuals. Thus, Courts are the guarantors of the liberty. Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document. Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement.

b.       Impact of Dicey’s Rule of Law on Administrative Law in Britain-He is Rule of Law has tremendous impact on the administrative law emergence in Britain.

c.        Advantages of his Rule of Law-

i.                     It has given the those countries following common law system, a philosophy to curb the government’s power and to keep it within its bounds ie. It has provided a sort of touchstone or standard to judge and test administrative law prevailing in the country at a given time.

ii.                   Since, traditionally, it denotes absence of arbitrary powers and therefore, one can denounce  the increase of arbitrary or discretionary powers of the administration and advocate controlling it through procedures and other means,

iii.                 Since it is relate with supremacy of courts, judicial control of administrative action is the pivot of administrative law in Britain even today.

iv.                 The principle implicit in the rule of law that the executive must act under the law, and not by its own decree or fiat, is still a cardinal principle of the common law system. Executive is regarded as not having any inherent powers of its own but all its powers flow and emanate from the law, a principle which plays such a vital role in all democratic countries of today.

v.                   It also serves as the basis of judicial review within the limits of law and does not overstep the same. In reality, it is viewed as a system of control of administrative power, it can be asserted that administrative law does not infringe but on the other hand promotes rule of law.

d.       Disadvantages of Dicey’s Rule of Law

i.                     For long time, his Rule of Law generated a sense of complacency in the British people so that they failed to see the emergence of administrative law as such till they were rudely as subject of study came on the scene quite late in the day.

ii.                   A grave defect in his Rule of Law was his inconsistence on the absence not only of arbitrary but even of discretionary power inescapable.

iii.                 One of the greatest defects  has been its misplaced trust in the efficacy of judicial control as a panacea for all evils, and somewhat irrational attitude generate towards the French System.

iv.                  It is widely believed that mere court review cannot supply an effective control-mechanism over the activities of administration and that some principles of droit administratif  should be incorporated within the common law system to have an effective control-mechanism over administration.

5.       Rule of Law India

The concept of Rule of Law is invoked often to convey the sense that the administration cannot exercise arbitrary powers and that it should function according to law.

Rule of Law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The necessary element of rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason.

Justice Khanna stated “Rule of Law is the antithesis of arbitrariness. Rule of law is now the accepted norm of all civilized societies. Indian constitution provides the rule of law in India. Rule of law serves the needs of people without undoubtedly infringing their rights. It recognizes the social reality and tries to adjust itself from to time avoiding authoritarian path. Rule of law under the Constitution has the glorious content. It embodies the concept of the law under the Constitution has the glorious content.

It embodies the concept of law involved over concept of Rule of Law accepted by our Constitution.  One of the aspects of Rule of Law is that every executive action if it operates to the prejudice of any person, must be supported by some legislative authority.

Principles of Rule of Law and due process are closely linked with human rights protection. Such rights ca be protected effectively when  a citizen has recourse to the courts of law. Failure to accord fair hearing either to the accused or prosecution violates even minimum standards of due process of law (Zahira Habibulla H. Sheikh v. State of Gujrat AIR 2004 SC 3114)

Obligation to act fairly on the part of administrative authorities was evolved to ensure Rule of Law and to prevent failure of justice. This is a doctrine which the  quasi-judicial authorities are also bound to observe. (Haryana Finance Corporation v. Jagdamba Oil Mills AIR 2002 SC 834)

The High Court is required to enforce Rule of Law, it is  therefore cannot pass order or direction contrary to what has been injuncted by law  (Karnataka State Road Transport Corporation v. Ashrafulla Khan AIR 2002 SC 629)

Constitution envisages a rule of law and not a rule of men. It recognizes that howsoever high one may be, he is under the law and constitution. All the constitutional functionaries must therefore, function within the constitutional limits. (Pancham Chand v. State of H.P. (2008) 7 SCC 117)

Thus, the concept of Rule of Law in India is dully recognized by the Constitution and is firmly established by judicial pronouncements.

6.       Conclusion

As evidenced by the failure to arrive at a precise definition, the rule of law is a complicated theory. As much as it embodies politics and the ideals of democracy, an in-depth understanding of the theory must include the law’s interaction with language, history, social structure, and culture. Importantly, the rule of law is more than just a set of rules and their judicial application. As a much-advocated theory in development studies, the rule of law is also a matter of policymaking, institutional development, and international politics.

 DISCLAIMER

The  above  publication is an academic note prepared for my Semester exam on Administrative Law. Most of the parts in this are either direct reproduction from various books or online sources and sources are not cited here. The major source for this article is from Principle of Administrative Law by M.P. Jain (Jain and Jain). Therefore, the author here bears no responsibility for any suits against  plagiarism or not citing references. Further, readers may only use this article to understand the concepts given here for their  self purpose and not for any commercial purpose. The author takes no responsibility on matters arising out of any use except for personal reading and understanding of the concepts provided here.