RULE OF LAW
- Definition of Rule of Law
- Supremacy of law
- Equality before law
- The predominance of the legal spirit
- Application of the doctrine
- Principal meaning of the modern Rule of Law
- Rule of law under the constitution of Indian law
- Case law
“Rule of Law” comes from a French phrase, ‘la principe de legalite’. It translates to ‘Principle of legality’ which means a government that has its basis on principles of law and not principles of men. This concept was therefore against the powers of arbitration.
The Rule of Law is among the major principles of the English Constitution. The doctrine was further adopted in the constitution of USA and India. The administrative law is totally based on the doctrine of the Rule of Law.
The doctrine of the Rule of Law is said to have its origin from Sir Edward Coke. He made a statement saying that God and the Law are what must stand above the King. This brought forth a supremacy law against the King.
In his lectures at the Oxford University, Professor A. V. Dicey later built on Sir Edward Coke’s doctrine. He did this through his book, “The Law and the Constitution” which was published in 1885. He wrote that a written constitution, independent judiciary, the concept of the Rule of Law and separation of powers, free election when forming the legislature, democratic government, basic rights of people and federalism are among the principles that give rise to constitutionalism in a country.
Definition of Rule of Law
Dicey maintains that the Rule of Law stands to be among the basic principles of the legal system in England. The doctrine of the Rule of Law has been accorded three meanings in Dicey’s book. The three meanings include:
- Supremacy of Law
- Equality before law
- The predominance of legal spirit.
Supremacy of Law
Dicey interprets that the Rule of Law is the universal supremacy of the regular law. It is different from powers of arbitrations or power that is meant to discriminate. It therefore puts aside arbitration authority in the government. This means that no human being will be and is above the law. Punishment should only be made when someone goes contrary to the law.
He added that discretion gives a chance for arbitrariness. Authority that has traces of discretion especially in a government of a republic directly translates to a deficiency of a legal freedom to the subjects.
The Rule of Law calls for the government to be subject to the law and not the other way around. In that case, no punishment should be given to a suspected wrong doer except by the process of the law before a court.
Dicey views this principle as the greatest feature of the common law.
Equality before law.
Every case from every class of people must be subjected to the ordinary law of the land that is propagated by the ordinary law of the Courts. Dicey says that there were no special tribunals or special courts for government officials and other forms of authority in England. Everyone was subject to one and the same law. Unlike England, the French legal system had different tribunals that presided over cases between state officials and ordinary citizens. Dicey called this a negation of equality.
Dicey further maintains that when the people are restricted from accessing the courts, the principle of equality is being forfeited.
The predominance of legal spirit.
Some judicial decisions have brought about the writing of the constitution that have rights such as the right to personal liberty, freedom from arrest and the freedom to hold public meetings. Dicey says that is not the case in England. The constitution should be the result of the rights of individuals but not the source. He therefore stressed that liberty is a guarantee that the courts of law should give. Furthermore, the rights stated above would be dealt with in a better way if they were to be enacted from the courts of law rather than stating them in documentations such as the constitution.
Some rights written in the constitution are powerless if they are not accompanied by protection and enforcement.
Application of the doctrine-
The doctrine was strictly made use of in England. Wade says that a man can sue the police like private individuals if they handle him wrongly during an arrest.
Wilkes v. Wood, 1763, it was ruled that damages caused during a trespass were maintainable since it was as a result of an order that was given by the minister.
Entick v. Carrington, 1765, a publisher was awarded 300 pounds for damages caused during a trespass by the King’s messengers who had been ordered by the secretary of state.
Principal meaning of the modern Rule of Law-
Modernity cannot totally accept Dicey’s concept of the Rule of Law. There is now the modern concept rule of law which is quite broad. Davis’ book, “Administrative Law” breaks the principle of the Rule of Law into seven meanings:
- Law and order
- Fixed rules
- Elimination of discretion
- Due process of law or fairness
- Natural law or observance of principle of natural justice
- Preference for judges and ordinary courts of law executive authorities and administrative tribunals
- Judicial review of administrative actions
Rule of law under the constitution of Indian law
The Indian constitution took up and makes use of Dicey’s rule of law. It is comprised of the key factors of justice, liberty, and equality. The third part of the constitution of India puts forward basic rights that are guaranteed, as subject to the protection and forcible action of the court.
The superior nature of the constitution is recognized by the three arms of the government: Executive, Legislature and the judiciary which renders the three subject to it. The principle of judicial review is incorporated in the Constitution and the Supreme Court which is the guard over fundamental rights. Art. 32 gives an individual who has been grieved by the administration the right to head to the Supreme Court. The Supreme Court is obligated to give the right orders thereafter.
The Courts of the law have the power to subdue the government to the provisions of the law if it wrongfully makes use of its authority. Every rule, regulation, ordinances, bye-laws, notifications, customs, and usages are laws in some way and can be named as ultra vires if they become unreliable and defiant to any provisions by the Supreme Court as stated in Art. 13. Individuals are not supposed to be robbed of their lives and liberty if procedures do not require of it as stated in Art. 21 of the constitution. The same is declared about his property in Art. 300-A except if it is required through the authority of the law.
The government and its officials are subject to questioning by the law for acts committed against the law hence rendering nobody above the law. This is because of the Indian Constitution in Art. 14 contends for equality before the law. They are also subject to the jurisdiction of ordinary courts of law. Equal opportunities are to be granted in public employment as given in Art. 16.
The above provisions indicate how the concept of the rule of law is riveted in the Indian Constitution. Keshvanand Bharti’s case, 1973 set that as the primary structure of the Constitution.
The work of the administrative law is not to contribute to executive arbitrariness, rather, its work is to monitor and guard the rights of people from excessive administration. In other words, the objective of the administrative law is to bring power and liberty to the same table.
The formulation that was made by the International Commission of Jurists in Delhi Declaration, 1959 and was confirmed in Lagos, 1961 stated that the government has the obligation to come up with conditions that will ensure the dignity of men is not violated as indicated in the Rule of Law. It goes further to explain that dignity is not all about opening the platform of civil and political rights but more of developing political, social, economic, educational and cultural atmospheres which are with no doubt, necessary for the growth of man’s personality.
When it comes to individual liberty and the rule of law, the Supreme Court of India has come up with the following principles:
- The State is not obliged to pass discriminatory laws.
- The State is not obliged to interfere with religious beliefs.
- The State is not obliged to place undue restrictions on freedom.
It has been noted that the Rule of Law is not enough to guard the misuse of power.
In criminal administration, the rule of law entails:
- Proper criminal process.
- Arrests should not be made without the jurisdiction of the law.
- Nobody should be presumed innocent.
- The legal aid which means everyone has the right to a fair hearing and public trial.
- Independent judiciary.
- Independent legal profession.
- Standard of professional ethics.
In Shukla v. ADM Jabalpur, the Government of M.P and Government of India appealed against rulings of those High Courts in the Supreme Court. A constitutional bench presided over the cases. The problem brought before the Supreme Court was whether there was a Rule of Law aside from Art. 21 of the Constitution. The ruling was that there is no rule of law apart from the constitutional rule of law. Art. 21 is the rule of law concerning life and liberty. There can never be another rule of law standing on its own as a distinct right.
In Veena Seth v. State of Bihar, AIR 1983 SC 339, the rule of law was stretched further to the poor and down-trodden and the ignorant and the illiterate in order to include all forms of humanity in India. The Rule of Law is not only for those who are able to contend for it and they actually do that to maintain their status quo; was the ruling of the Supreme Court.
Indira Nehru Gandhi V. Raj Narain, AIR 1975 SC 2299,
Mathew J., made a statement saying that there is the lack of the Rule of Law if the discretionary authority is granted to departments in the government or government officers. Dicey has been on the radar of critics for misunderstanding the reality in the French droit administrative. This is because the French system has proven itself to be more results producing when it comes to controlling powers of the administration compared to the common law system.
However, Dicey’s analyzation of the rule of law has in the modern times identified itself with the rights of citizens. Countries that are not communistic have accepted the doctrine though with some differences. The doctrine is used in countries that practice democracy to keep watch over administrative authorities against oppression and arbitrariness. In 1959, the International Commission of Jurists took in the concept of the rule of law as the law of nature in the modern times in their ‘Delhi Declaration.’
It is clear that Dicey’s concept of the Rule of Law was not perfect from top to bottom. The Rule of Law has however been able to take charge of administrative powers and subdued them to their parameters. The principle has been adopted by many countries as the watchdog of the constitution.
The modern concept of the rule of law is broad. This makes it possible for governments to use it. The objective of the administrative law is to bridge the gap between liberty and power. The Rule of Law guides governments to create conditions that do not interfere with the dignity of man. It stands as a dynamic doctrine just like other doctrines that do not stand to have a precise definition.