"Be you so high, the law is above you." This principle, part of the Rule of
Law, has come to represent the powerful idea that even politicians and monarchs
are bound by the law. The Rule of Law comprises a number of principles of a
formal and procedural character, addressing the way in which a community is
governed. The idea of Rule of law, more ubiquitous globally today than ever
before, owes a lasting debt to the work of victorian legal theorist A.V. Dicey.
Thereafter 1959 Delhi Declarartion incorporated three more principles for making
Dicey's Rule of Law workable. For successful functioning of the country it's
imperative that there is enforcement of law. The concept of rule of law plays an
important role in the process of maintaining public order and peaceful,
progressive environment for the people.
The principle implicit in the rule of law that executive must act under the law,
and not by its own decree or fiat, is still a cardinal principle of the common
law system. Rule of law being a live and dynamic concept is continuously being
evolved in India and all over the world by robust judiciary. The paper intends
to provide an insight into the principle of Rule of Law as a political morality.
It shall also present an analysis of A.V. Dicey's conception of Rule of Law and
the evolution of the concept in India.
Rule of law is a live and dynamic concept. The term 'rule of law' is derived
from the French phrase 'la principle de legality' (principle of legality) which
means a government based on principles of law and not of men. Basically this
principle means that law is supreme and no one, whether rich or poor is above
The King is not the law but the law is king. According to this principle
government authority may only be exercised in accordance with the written laws
which are adopted through an established procedure. It is a safeguard against
the arbitrary actions tradition. A country that enshrines the rule of law
would be one where the Grundnorm of the country, or the basic and core law
from which all other law derives its authority, is the supreme authority of the
state. It is a rare and protean principle of our political morality.
The Origin of Rule of Law
Rule of law is a very old, almost ancient principle. Plato wrote: "Where the law
is subject to some other authority and has none of its own, the collapse of the
state, in my view, is not far off; but if law is the master of the government
and the government is its slave, then the situation is full of promise and men
enjoy all the blessings that the gods shower on a state. Likewise, Aristotle
also endorsed the concept of Rule of law by writing that law should govern and
those who arein power should be servants of the laws. Bracton, a 13th century
judge during the reign of Henry III, introduced the concept without specifically
calling it rule of law. Rather he presented it as - the king himself ought to be
subject to God and the law, because law makes him king.
However, Edward Coke is considered to be the originator of this concept when he
said that the king must be under God and law and thus vindicated the supremacy
of law over the pretentions of the executives. In India the concept can be
traced back to Upanishads- it provides 'law being the king of kings'. However,
the credit of building on this concept goes to A.V. Dicey who in his book
'Introduction to the Study of the Law and the Constitution' (1885) wherein he
developed the concept of rule of law. According to Dicey, no man is punishable
or can be lawfully made to suffer in body or goods except for a distinct breach
of law established in the ordinary legal recourse of the land.
Dicey's theory of Rule of law
For Dicey, the key to the Rule of Law is legal equality:
'[W]ith us no man is above the law [and] every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals'
Dicey's theory has three main principles of Rule of law are:
Criticism of Dicey's Rule of Law
- Absence of Arbitrary Power or Supremacy of Law:
A.V. Dicey states that rule of law means there should be lacking of
arbitrariness or wide discretionary power. In the words of Dicey, '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 the
Government must mean insecurity for legal freedom on the part of its
subjects.' Dicey was of the view that all individuals whether a common
man or government authority are bound to obey the law.
Therefore, laws ought to be rooted in moral principles, which cannot be
achieved if they are framed in too detailed a manner. No man can be
punished for any breach other than a breach established in law.
- Equality before law:
Even government authorities are duty-bound to obey the same law and they
have no special orders to deal with their causes.
Prof. Dicey states that, there must be equality before the law or equal
subjection of all classes to the ordinary law of the land. He criticised the
French legal system of droit Administrative in which there were separate
administrative tribunals for deciding the cases of State Officials and
- Individual Liberties:
In many countries rights such personal liberty, freedom, etc are written
down in the constitution. However in England these rights are a result of
judicial precedents. The constitution is not a source but the consequence of
the rights of individuals.
Dicey asserted that the above mentioned features existed in the British
No account of the Rule of Law is complete if it does not mention the ways in
which this ideal is deprecated. The laudatory history of the Rule of Law in the
work of thinkers like Aristotle, Locke, Dicey, Hayek and Fuller has been matched
by opponents of legality such as Plato (in The Statesman), Thomas Hobbes and
Carl Schmitt 1923 (in his attack on parliamentarism and on the liberal
assumption that rules can prevail even under conditions of endemic crisis).
The criticism by Plato (c. 370 BC) has been the most enduring. From his
perspective, which extolled the application of focused intelligence and insight
by those in power, insistence upon the use of law in government was:
'like a stubborn, stupid person who refuses to allow the slightest deviation
from or questioning of his own rules, even if the situation has in fact changed
and it turns out to be better for someone to contravene these rules '.
Further, the sense of what good law-making and ordinary legal administration
require conveyed by the principles of the Rule of Law is sometimes criticized as
archaic. Partisans of the Rule of Law often think in terms of clearly drafted
and prospective measures promulgated as norms that can stand in the name of the
whole community and form a publicly acknowledged framework for their actions and
transactions. But this is not really how law operates in the modern world.
As Rubin 1989 points out, a great deal of modern legislation consists simply of
a frame-working statute authoring agencies to develop much more detailed rules
which are conveyed to the public�to the extent that is necessary�by modes of
communication much more complex and nuanced than those envisaged in traditional
models of the Rule of Law.
Sir Ivor Jennings (1903-1965) was a Fabian socialist who approved of government
regulation of business, social security provision and disagreed with Dicey's
disagreements with the interventionist state. Jennings criticised Dicey's work
arguing that it failed to deal with the powers of government. In his view
Dicey was more concerned with constitutional relations between Great Britain and
Northern Ireland than relations between poverty, disease and increased
Dicey's focus was only upon tort law and not public law; Jennings questioned
Dicey's narrow focus of the meaning of the Rule of Law due to its focus only on
the fact that public officials can be sued by people aggrieved by a tortious act
or omission in the act of their duty. Jennings argued that 'this is a small
point upon which to base a doctrine called by the magnificent name of "Rule of
Moreover, Dicey has been criticised for having misunderstood discretionary power
for arbitrariness. Dicey has opposed the system of providing the discretionary
power to the administration. In his opinion providing the discretionary power
means creating the room for arbitrariness, which may create as serious threat to
individual freedom. However, in the contemporary times it has been clear that
providing the discretion to the administration is inevitable. The opinion of the
Dicey, thus, appears to be outdated as it restricts the Government action and
fails to take note of the changed conception of the Government of the
Rule of Law in the Modern sense
Dicey's theory cannot be accepted in today's world in totality because as argued
by Martin Loughlin that although a coherent formulation of the general concept
of the rule of law can be devised, this formulation is entirely unworkable in
practice. As a result, the rule of law must not be considered as amounting to a
foundational concept of public law. Its main strength is as an aspiration.
The new idea of rule of law is fairly broad and therefore puts up the benchmark
of how an ideal government should be. This was developed by the International
Commission of Jurists, also known as Delhi Declaration, 1959 which was later
on confirmed at Lagos in 1961. Accordingly the functions of the government in
the free society should be so exercised as to create conditions in which the
dignity of an individual is upheld. This dignity mandates the recognition of the
basic civil, political, social, economical, educational and cultural rights
which are essential to the complete development of an individual's personality.
Therefore, today, the Rule of Law is comprised of an intricate chain of
fundamental ideas, which include equality before the law; equal treatment before
the law for government and the governed; the independence of the judiciary;
transparency, consistency, and accountability in the administration of law; and
the notions of equity, justice and fairness. Like all chains, the Rule of
Law is only as strong as its weakest link.
Lord Bingham in the House of Lords outlined 8 sub-rules which he believed
comprised the rule of law and these 8 principles enunciated by Lord Bingham had
been regarded as the modern version of the rule of law. He argued that -
'The core of the existing principle is � that all persons and authorities within
the state, whether public or private, should be bound by and entitled to the
benefit of laws publicly and prospectively promulgated and publicly administered
in the courts''.
The 8 principles are:
Thick and thin version of Rule of Law
- Questions of legal right and liability should be decided by application
of the law;
- Law should be accessible, clear and predictable;
- The law of the land should apply equally to all, except when objective
difference requires differentiation;
- Public officials should exercise their powers in good faith, and not
exceed their powers;
- The law must protect fundamental rights;
- A method should be provided, at reasonable cost, to resolve civil
- Adjudicative procedures must be provided by the state should be fair;
- The rule of law requires the state to comply with its obligations in
The thin version amounts to a largely procedural understanding of the notion in
which the process of obtaining a 'justice outcome' has to meet certain criteria
in order to be considered 'just' (and hence, in accordance with the rule of
law). For example, it should be public, impartial and accessible. As this
approach says little about the substance of the law, understandably it leads to
a focus on the systems, mechanisms and procedures at work at the different
stages of the justice chain that ultimately lead to justice outcomes. This
concept of the rule of law offers a practical lens for understanding and working
with reality that is premised on procedural normativity.
While, The 'thick' version of the rule of law contends that correct procedure
alone cannot bring about 'just outcomes' because the substance of those outcomes
matters as much as how they are arrived at. In this version, it is generally
held that just outcomes must be reflective of the rights and duties conveyed by
existing international treaties and/or domestic entitlements and obligations
related to human, political and social rights.
Having said that, while, the thin version of Rule of Law is too devoid of
substance to generate just outcomes, the thick version is too prescriptive of
such outcomes to stimulate practical progress in fragile societies. This makes
it useful to think of ways to conceptualise the rule of law that allow for
significant variations in substance and form, but that also remain coherent and
aspirational. Therefore, theorist like Jowell and Allan ensapsulate both
formal and substantive aspect to build their conception of Rule of Law.
Jowell has articulated a view of the rule of law, which has both a formal and a
substantive dimension that is a thin and thick version of the Rule of Law
respectively. He accepts that one must be careful about equating the rule of law
with the substance of particular rules. He accepts also that a significant part
of the rule of law is concerned with procedure or form as opposed to substance.
Jowell does however believe that the rule of law has a substantive dimension. He
perceives the rule of law as a principle of institutional morality and as a
constraint on the uninhibited exercise of government power.
Allan's interpretation of the rule of law also contains an admixture of formal
and substantive elements. He argues that we should go beyond the formal or
'thin' conception of the rule of law, but that we should stop short of regarding
the rule of law as the expression of any particular theory of substantive
justice. The rule of law should embrace, in addition to its formal attributes,
ideals of equality and rationality, proportionality and fairness, and certain
substantive rights thus evolving into its 'thick' form.
These are said to constitute central components of any recognisably liberal
theory of justice, while leaving the scope and content of the rights and duties
which citizens should possess largely as a matter for independent debate and
analysis. Allan's theory of Rule of Law embraces certain substantive rights,
namely freedoms of speech, conscience, association, and access to information.
It is recognised that there will be other rights within a liberal polity, which
should be faithfully applied, but these are not regarded as a constituent part
of the rule of law.
Adoption of Rule of Law in India
Part III of the Constitution is the litmus test for the law making power of the
Indian Parliament. The principles of Rule of Law i.e. justice, equality and
liberty are enriched in the Constitution of India. In our Constitutional system,
the central and most characteristic feature is the concept of the rule of law,
in the present context, is the authority of law courts to test all
administrative action by the standard of legality and set aside those that do
not meet the standard will be set aside those that do not meet the standard of
ADM Jabalpur v Shivkant Shukla is one of the primary cases in determining
rule of law. The case dealt with the fact if rule of law exists in India, apart
from Article 21. While the majority ruled in negative, H R Khanna, J. in his
minority opinion observed that even in the absence of Article 21 the State would
have no right to deprive a person of his life and personal liberty without
authority of law. Without such sanctity the distinction between a lawless
society and one governed by laws would cease to have any meaning.
Secondly, Rule of Law provides that government should be conducted within a
framework of recognised principles which restrict unbridled powers. In Som Raj v
State of Haryana it was held that the primary postulate of rule of law is
the absence of arbitrary power, upon which the entire constitutional edifice
depends. Discretion without any rule is the anti-thesis of rule of law.
In the case of Sukhdev v. Bhagatram, Mathew J. declared that:
"Whatever be the concept of the rule of law, whether it be the meaning given by
Dicey in his "The Law of the Constitution" or the definition given by Hayek in
his "Road to Serfdom"and "Constitution of liberty"or the exposition set-forth by
Harry Jones in his "The Rule of Law and the Welfare State", there is, as pointed
out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural
Justice"in "Democracy, Equality and Freedom,""substantial agreement is in
juristic thought that the great purpose of the rule of law notion is the
protection of the individual against arbitrary exercise of power, wherever it is
Thirdly, Rule of Law highlights the independence of judiciary and supremacy of
courts. State function flows from the decision of superior courts. It's the
touchstone for administrative law prevailing in the country. The cardinal
principle drawn by many common law systems like India in the rule of law is that
the executive must act under the law and not by its own fiat.
Over the years the ambit of rule of law has been widened. Now it's considered to
be a part of basic structure and hence can't be abrogated even by the
Parliament. Constitution is the grundnorm and every law has to be in
conformity with it. In Keshavananda Bharti case the Supreme Court enunciated
the rule of law as one of the basic aspects of doctrine of basic structure.
The court has also declared that Art 14 strikes against arbitrariness and
amendments such as the 39th Amendment are invalid since they go against the
basic structure of the Constitution. Moreover in Bachan Singh J.
Bhagwati has emphasised that rule of law excludes unreasonableness. To ensure
this, it's necessary that there should be an independent judiciary to protect
the citizens against the excesses of executive and legislative power.
Rule of law is an idea for law, justice and morality. It considers what norms,
laws, rules, procedures, systems, and structures should be and what they
shouldn't be. Inherent in this principle are three realities- law governs people
as well as government itself, people should obey the law and finally, law need
to be able to obeyed- not only in the sense of being known or predicted but also
being just in the greatest extent.
This facilitates stability, peace and check on absolutism and despotism.
Corruption, terrorism, etc are antithesis to Rule of Law. However, common law
traditions and Constitution along with a perseverant judiciary have led to do
the development of rule of law in India. 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
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.
For e.g. The discrimination of eunuchs based on their class and gender makes the
community one of the most disempowered groups in Indian society eunuchs might
have an accepted place in Indian society, but it is a place pretty much at the
bottom of the social heap making them not just a sexual but also a highly
deprived social minority.
It is the responsibility of the public administration for effective
implementation of Rule of Law on constitutional commands which effectuate fairly
the objective standards laid down by law. Every government servant holding
public power is as a trustee of the society and accountable for due effect
In a society where Rule of Law plays a purposeful role, democracy flows from
prevalence of rule of law. Therefore, both the concepts, i.e. democracy and rule
of law are intertwined, co-dependent systems. It's imperative that consistent
efforts be made to preserve rule of law in the society without which our
fundamental credentials as a democracy will be undermined.
Harward System of Citation used.
Written By: Saumya Tripathi,
- Alexandru Stoian & Teodora Drăghici, The Principle Of Legality Principle
Of Public Law, 21 International conference Knowledge Based Organisation 512,
- Thomas Paine, Common Sense 43 (The Capitol Net Inc. 2011).
- A V Dicey, Introduction To The Study Of Law Of The Constitution
1835-1922, (Macmillan 1915)
- Mridushri Swarup, Kelsen's Theory of Grundnorm, Manupatra (July 5, 2021,
01:00 PM), http://manupatra.com/roundup/330/Articles/Article%201.pdf
- Supra note 4.
- David Chan Smith, Sir Edward Coke and the Development of the Rule of
Law, Fifteen Eighty Four:Perspectives from the Cambridge University Press
(July 5, 2021, 1:10 PM), http://www.cambridgeblog.org/2015/01/sir-edward-coke/
- Rajesh Kumar, Supremacy of law is the aim, rule of law is the best tool
to achieve this aim: analysis and critically examine the scope of rule of
law in India, 9 SRJIS 2219, 189 (2015)
- Supra note 4.
- Alok Kumar Yadav, Rule of Law, 4 IJIIJS 205, 210 (2015).
- M.P. Jain, Indian Constitutional Law 7 (8th 2021).
- Plato, The Statesman 370-371, (Julia Annas trans., Cambridge University
- Jeremy Waldron, Rule of Law, Stanford Encyclopedia of Philosophy (July
5, 2021, 01:53 AM), https://plato.stanford.edu/entries/rule-of-law/
- Sir Ivor Jennings, The Law And The Constitution 312 (2nd ed. 1938).
- Supra note 12.
- Martin Loughlin, The Rule of Law in European Jurisprudence, Vienna
Commission (july 5, 2021, 5:16 PM),
- Noram S. Marsh, The Rule of Law in free society, International Jurist
Commission (July 3, 2021, 12:05 AM), https://www.icj.org/wp-content/uploads/1959/01/Rule-of-law-in-a-free-society-conference-report-1959-eng.pdf
- Earnest Angell, The Rule of Law at the New Delhi Congress of the
International Commission of Jurist, JSTORE (July 6, 2021, 4:51 PM) https://www.jstore.org/stable/2574318
- Lord Bingham, The Rule of Law, 66 Cambridge L.J. 1, 67 (2007).
- See Erwin Van Veen, A Shotgun Marriage: Rule of Law in fragile
societies, CLINGENDAE (July 5, 2021, 6:17 PM), https://www.clingendael.org/pub/2017/a_shotgun_marriage/
- Paul Craig, Rule of Law, UK Parliament (July 5, 2021, 7:00 PM), https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm
- See T.R.S. Allan, Constitutional Justice: A Liberal Theory Of Rule OF
LAW 89-100 (Oxford University Press 2001)
- Chief Settlement Commissioner, Punjab v. Om Prakash (1969) 3 SCC 655
- ADM Jabalpur v Shivkant Shukla 1976 (2) SCC 521 (India).
- The Constitution of India. The article states that-"No one shall be
deprived of his life or personal liberty except according to procedure
established by law".
- Som Raj v State of Haryana (1990) 2 SCC 653 (India).
- AIR 1975 SC 1331
- Union of India v Raghubir Singh (1989) 2 SCC 754 (India)
- Supra note 4.
- Keshavananda Bharti v State of Kerala AIR 1973 SC 1461 (India).
- Maneka Gandhi v Union of India 1978 AIR 597 (India).
- Indira Gandhi v Raj Narain AIR 1975 SC 2299 (India).
- Bachan Singh v State of Punjab (1980) 2 SCC 684 (India).
- State of Punjab V. G.S.Gill, (1997) 6 SCC 129 (India).
- Supdt. Engineer, Public Health U.T. Chandigarh V. Kuldeep Singh, (1997)
9 SCC 199 (India).
1st year Student, Banaras Hindu
University, Varanasi, Uttar Pradesh.