As per the World Justice Project Rule of Law Index 2019 rule of law
adherence in 126 countries, India ranked 68.
The Rule of Law is measured on
multiple factors like Government Powers, Absence of Corruption, Open Government,
Fundamental Rights, Order, and Security, Regulatory Enforcement, Civil Justice,
and Criminal Justice which has fallen from 65th to 68th. This Article is focused
on meaning and understanding of the rule of law in a global sense also argues on
the vitality of subject in the present era. So, the concept of rule of law can
be traced back from the civilization of Greece, China, Mesopotamia, India and
In the fourth century, B.C. Aristotle wrote the book Politics which tells
governance of law and suggested the notion of participatory governance. While
explaining it he quoted that all men should follow and abide by the law.
Also, the Greeks were among the first people in history to separate the court
process from government power and introduced judgment by their peers.
modern form of Rule of Law originated from the criticism of the Divine Theory of
State. As per the king was given the power to govern the people by the Divine
Authority (God). This theory propagates that, King can do no wrong, the king
is above law
The Chief Justice of England, Sir Edward Coke at the time of King James I,
criticize and argued that the king should also be under the preview of rule of
law. Professor A. V Dicey in his book An Introduction to the study of the Law
of the Constitution summed up these practices in five principles i.e.
Principle of impartiality, the principle of equality before the law, the
principle of fair hearing, the principle of supremacy and right to appeal.
Davis worked on it and listed seven principles of rule of law which includes law
and order; fixed rules; elimination of discretion; due process of law or
fairness; natural law or observance of the principles of natural justice;
preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and Judicial review of administrative actions.
analyzing historical background if we sum-up rule of law then it will be laws
that are applicable to everyone equally. It also covers laws that are created
through the predetermined, open and transparent process, not by the whim of the
most powerful members of society.
Relationship between Political Sovereign and A
stakeholder is the matter of governance that can be run effectively and
efficiently through the system of Rule of Law. Often rule of law is confused
with rule by law. Any law which is laid down by the supreme lawmaking authority
of that country and cannot be questioned is ruled by law. On the other hand
according to Britannic cyclopedia Rule of law is a process, institution,
practice or norm that supports the equality of all citizens before the law, the
secure non-arbitrary form of government.
On understanding this definition in
the rational sense we will be able to understand that the above-mentioned
definition is based on three pillars that are the supremacy of law, equality
under law and sense of legal spirit. Segregation of society on the basis of
ideologies, culture, language, region and other such social-cultural set of a
block gives rise to discrimination practices. In the same way subjects of law
also varies which give the unequal practice of law. Rule of law in this context
refers to that act as an instrument that regulates all subject matter in uniform
sense and focuses on equality. Equality before the law is the popular phrase of
equality principle of rule of law.
From the Magna Charta to the French
Revolution this notion of equality has been used in various political
revolutions against sovereign and state. John Locke and Rousseau studies talk
about certain rights and freedom which takes into consideration of equality
principle into. Later natural law philosopher like Fuller and Mill discussed the
concept of inner morality which emphasis on just and equal laws in procedural
and applicability sense.
To keep a proper check on the uniformity of the above-mentioned notion, there is
a need where all the executives need to exercise their power in a reasonable and
rational manner. It opens the door for discretional use of authority rather than
the arbitrary exercise of functions.
Authorization refers to the code of conduct
that has the backing of a legal source. The action performed by bureaucrat
should have discretion not arbitrary. Discretion is the power of a judge, public
official or a private party (under authority given by contract, trust or will)
to make decisions on various matters based on his/her opinion within general
Lord Diplock put it well in a recent case when he said:
The very concept of administrative discretion involves a right to choose
between more than one possible course of action upon which there is room for
reasonable people to hold differing opinions as to which is to be
Justification or accountability is another aspect of the use of
power as Justification provides protection against arbitrariness; part of what
defines arbitrary action is an action that is not justified. Scope of Judicial
Review of certain administrative actions can also fix check over the Negative
discretion. Procedurals fairness and Coherence are the last two essential
elements of fair discretional use of authority. The later concept of
proportionality and transparency added to this principle through which the rule
of law could become more efficient and effective.
In the Indian Constitution from the popular habeas corpus case, ADM Jabalpur v.
Shivakant Shukla the implementation of rule of law discussed. In this case, the
question before the court was 'whether there was any rule of law in India apart
from Article 21'. This was in the context of suspension of enforcement of
Articles 14, 21 and 22 during the proclamation of an emergency. The answer to
the majority of the bench was in negative for the question of law.
Justice H.R. Khanna dissented from the majority opinion and observed that Even
in absence of Article 21 in the Constitution, the state has got no power to
deprive a person of his life and liberty without the authority of law. Without
such sanctity of life and liberty, the distinction between a lawless society and
one governed by laws would cease to have any meaning.
Fundamental Rights our
Constitution restricts law-making power of the Indian Parliament in order to
guarantee and promote fundamental rights and freedoms of the citizens and the
respect for the principles of the democratic State-based on rule of law. Even in
the United Kingdom, the rule of law is a long-standing principle of the way the
country is governed, dating from Magna Charta in 1215 and the Bill of Rights
The U.S. Army field manual defines the rule of law as follows:
rule of law refers to 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.
As we discussed from Rome and Greece Civilization to Modern State like India,
USA and UK has always taken into account the concept of rule of law and its
application. Each state from ancient era till present time has implemented and
adopted the ideas of it. Accountability, Fair Trail, Reasonable use of
authority, Transparency, The supremacy of law is some of the systems which are
always been a part of the administrative and legislative part of the governance.
The incident like fall of divine theory of the state, Magna Charta and Landmarks
Precedents goes around these values. Thorough UN to individual states all are
the subject matter of Rule of Law. Refugees, Women, illiterate, Poor, Children
are covered and protected through it. Basic and Universal right contract between
state and stakeholder regulate through it. In the coming era where the flow of
Nationalism, Privatization and Capitalization are increasing the acceptance of
the Uniform Rule of Law is decreasing. The Aim of Political Sovereign has been
shifted from global concern to its own concern. In such a scenario it will be
really interesting to see the role and position of rule of law and its influence
over the transnational policy around the globe.
- World Justice Project, Rule of Law Index 2019 Insights, Retrieved from
- Kate Allman, History of the rule of law, The Boiling Frog (4.53pm,
7-17-2019), Retrieved fromhttps://moodle.stu.ca/pluginfile.php?file=%2F71569%2Fmod_resource%2Fcontent%2F1%2FBluebook.pdf
- PreethiRamanujam, Development of the Rule of Law, Legal Service India
(4.57pm, 7-17-2019), Retrieved from http://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html
- Rule of law, Political Philosophy, Naomi Chaoi, Britannica , (12.48 pm,
- Discretion Law and Legal Definition, USLegal, (3.11pm, 7-17-2019),
- Secretary of State for Educ. and Science v. Tameside Metropolitan
Borough Council,  A.C. 1014 at 1064 (C.A.). See also Dussault, Traitj
de droit administratif canadien et quibicois (Qudbec: Les Presses de
l'universit Laval, 1974) at 1398.
- Chhavi Agarwal, Rule of law - A reflection upon we the people and
beyond, (5.40pm, 7-17-2019) Retrieved from
- The Rule of Law. The Constitution Society. Archived from the original
on 6 October 2014. Retrieved 3 October 2014.
- Conor Friedersdorf, America Fails the 'Rule of Law' Test, The Atlantic,
(5.58pm, 7-17-2019), Retrieved from https://www.theatlantic.com/politics/archive/2014/07/how-america-fails-the-rule-of-law-test/374274/