RULE OF LAW

1. Origin of the concept of Rule of Law

Rule of law can be traced back to Aristotle. The term Rule of Law is derived from
the French phrase la principe de legalite (the principle of legality) which refers to
a government based on principles of law and not of men. It also means that
power should be exercised within the statutory ambit and purported exercise of
it would not just be ultra vires, but in a true sense of term arbitrary.
According to A V Dicey whenever there is discretion there is room for
arbitrariness. Even in the most autocratic form of ruling there is a legal
framework according to which the government works.
In a monarch this concept developed to control the power of arbitrary powers of
the monarchs who claims to have divine powers. Same way in a democracy it
ensures that the holders of public policy must be able to justify publicly that
the

exercise

of

powers

is

socially

just

and

according

to

law.

2. Diceys Concept Of Rule Of Law

In his book, the law and the constitution, published in the year 1885, Dicey
attributed three meanings to the doctrine of rule of law:
1. Supremacy Of Law: It implies the absolute power of law, dominance and the
supremacy of Law. It is opposed to the influence of arbitrary power and wide
discretionary power.
2. Equality Before The Law: The law administered should be the ordinary rule
of law applicable to all the people equally irrespective of caste and creed or
religion. This doctrine has been also included in the Indian Constitution in the
form of Article 14. The excerpts of which can also be seen in Article 15. Dicey
was of the view that, any encroachment on the jurisdiction of the courts and
any restrictions on the subjects unimpeded access to them are bound to
jeopardize his rights.
3. Predominance Of Legal Spirit: The Constitution is not the source but the
consequence of the rights of the individuals. Here, Dicey emphasized on the role
of the courts. Without an authority to protect and enforce the rights conferred

upon citizen, their inclusion in a document etc. is of little value. Mere inclusion
is not authoritative and its provisions might be abridged, trampled or
overlooked.
3. Adoption Of Rule Of Law In India And Supreme Court Judgments:
Fundamental rights enshrined in part III of the constitution is a restriction
on the law making power of the Indian Parliament. It includes freedom of
speech, expression, association, movement, residence, property, profession
and personal liberty. In its broader sense the Constitution itself prescribes
the basic legal system of the country. 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.
a. In A.D.M Jabalpur v. ,Shivakant Shukla, 1976 SC, On 25th June,
emergency was proclaimed under Article 359. Large number of persons
was arrested under N11SA (Maintenance of Internal Security Act. 1971)
without informing the grounds for arrest. Some of there filed petition in
various high Courts for writ of Heabeas Corpus. The petitioners contend
that their detention is violation of Article 21. It was argued on the other
side that the protection tinder Article 21 is not available (suspended)
during emergency. The preliminary objection (not to file writ petitions
during emergency). The Preliminary objection (not to file writ petitions
during emergeyc) was rejected by various High Courts. The Madhya
Pradesh Government through Additional District Magistrate. Jabalpur
and Government of India filed appeals before Supreme Court. The
question before Supreme Court was, whether there was any rule of law in
India apart front Article 21 of the Constitution. The Supreme Court by
majority held that there is no rule of law other than the constitutional
rule of law. Article 21 is our rule of law. If it is suspended, there is not
rule of law.
b. The Supreme Court observed in Som Raj v. State of Haryana that the
absence of arbitrary power is the primary postulate of Rule of Law upon
which the whole constitutional edifice is dependant. Discretion being
exercised without any rule is a concept which is antithesis of the concept.

c. The third meaning of rule of law highlights the independence of the

judiciary and the supremacy of courts. It is rightly reiterated by the
Supreme Court in the case Union of India v. Raghubir Singh that it is
not a matter of doubt that a considerable degree that governs the lives of
the people and regulates the State functions flows from the decision of the
superior courts.
d. In Chief settlement Commr; Punjab v. Om Prakash , it was observed by
the supreme court that, In our constitutional system, the central and
most characteristic feature is the concept of rule of law which means, in
the present context, the authority of law courts to test all administrative
action by the standard of legality. The administrative or executive action
that does not meet the standard will be set aside if the aggrieved person
brings the matter into notice.
e. In India, the meaning of rule of law has been much expanded. It is
regarded as a part of the basic structure of the Constitution and,
therefore, it cannot be abrogated or destroyed even by Parliament. The
ideals of constitution; liberty, equality and fraternity have been enshrined
in the preamble. Constitution makes the supreme law of the land and
every law enacted should be in conformity to it. Any violation makes the
law ultra vires. In Kesavanda Bharti vs. State of Kerala (1973) - The
Supreme Court enunciated the rule of law as one of the most important
aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of
India - The Supreme Court declared that Article 14 strikes against
arbitrariness. In Indira Gandhi Nehru vs. Raj Narahr - Article 329-A was
inserted in the Constitution under 39th amendment, which provided
certain immunities to the election of office of Prime Minister from judicial
review. The Supreme Court declared Article 329-A as invalid since it
abridges the basic structure of the Constitution.
f. In the case of Binani Zinc Limited Vs. Kerala State Electricity Board
and Ors. (2009) Justice S B Sinha declare that It is now a well settled
principle of law that the rule of law inter alia postulates that all laws
would be prospective subject of course to enactment an express provision
or intendment to the contrary.
g. Yusuf Khan v. Manohar Joshi in which the SC laid down the
proposition that it is the duty of the state to preserve and protect the law

and the constitution and that it cannot permit any violent act which may
negate the rule of law.
Other important cases
A.K. Kraipak v. UOI; Indira Nehru Gandhi v. Raj Narain; Peoples
Union for Democratic Rights v. UOI.