The term ‘Rule of Law’, means the principle of legality which refers to a government based on principles of law, and not of men. In this sense the concept of rule of law is opposed to arbitrary powers.

Rule of Law is one of the basic principles of English Constitution. This doctrine has been enshrined in the Constitution of U.S.A. and in the Constitution of India as well. The entire basis of Administrative Law is the concept of Rule of Law. Sir Edward Coke, the Chief Justice in King James I’s reign is said to be the originator of this great principle. In a battle against the King, he succeeded in maintaining that the King must be under God and the law and thus vindicated the supremacy of law against the executive. Dicey developed this doctrine of Coke in his classic book, ‘The Law and the Constitution’ published in the year 1885.

Rule of Law is a classical principle of Administrative Law. As a master of fact, this principle was one of the principles that acted as impediment to the development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the Rule of Law is still one of the very important principles regulating in common law countries and common law derived countries, modern laws have denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.

Dicey defined Rule of Law as the “absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of prerogatives or even wide discretionary power on part of the government”. Dicey asserted that wherever there is discretion, there is room for arbitrariness which leads to legal insecurity of citizens.

Other aspects of Dicey’s Rule of Law are equality before law or equal subjection of ordinary law to all class of people by ordinary court. Whereas he asserted that the French Droit Administratif is a bad law where there are separate tribunals for different matters. He further insisted that England hadn’t any of the similar or same system existed.

The later view of Dicey about the equality and dominance of law over arbitrariness set standard of most civilized Constitutions of the world. However, the later views on Droit Administratif impaired the development of Administrative Law as a very early stage where it required support. Administrative Law was, for almost all the time, including Dicey’s dominion, present, but was never recognized as it should have been for a neat and satisfactory development in common law countries.

The presence of Administrative Law and its inevitable nature is clear by the recognition of some of the scholar’s contemporary to Dicey. Maitland was one of those scholars who have recognized the presence of Administrative Law in England. It is also evident that the presence of Administrative Law was substantial but was ignored by Dicey in his early era. The famous

case of Board of Education v. Rice and Local Government Board v. Arlidge affirmed the practice of Administrative Law in England. It is evident that it is after this case that Dicey realized the presence of Administrative Law in a positive form. He however maintained that the presence of Droit Administratif in England is no body’s case and that the rule of law must be preserved.

The rule of law, as propounded by Dicey, has its own advantages and disadvantages. Apart from setting the base for all common law countries, it has also provided the base for Administrative Law principles. It is a method by which executive in general and government in particular is kept in control against the misuse of wide power vested in them. It also eliminates unreasoned discretion, bias and arbitrariness in governance that emanates from wide power of executive. Moreover, the Rule of Law gives supremacy of Courts over all other functionaries of State. This leads to the further curbing where government can’t be judge in his own cause.

Dicey’s submission of Rule of law has its disadvantages as well. Where Dicey’s Rule of Law eliminated presence of arbitrary power in government, it also eliminated the ‘wide discretionary’ power from the government. The protests of Dicey in presence of wide discretionary power in government would lead to the failure of policies and implementation of law as required apart from bas assessment before the formulation of policy. The biggest mistrust being the efficacy of judiciary in managing affairs of the state in Dicey’s Rule of Law.

Dicey’s Formulation of Rule of Law

A.V. Dicey developed the concept in the course of his lectures at the Oxford University. He laid a stress on the fact that Englishmen could be punished for a breach of the law and for nothing else. Dicey developed his thesis in his classic work entitled ‘The Law and the Constitution’ published in the year 1885.

In his formulation, Dicey attributed to the concept of rule of law, the following three meanings:

A. Supremacy of Law

Explaining the first principle, Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. It excludes the existence of arbitrariness of prerogative or even wide discretionary authority on the part of the Government. According to him the Englishmen were

ruled by the law and law alone. A man may be punished for the breach of law, but can be punished for nothing else. He denied that in England the government was based on exercise by persons in authority of wide arbitrary or discretionary powers. In his words “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 of legal freedom on part of its subjects.” As Wade says, the rule of law requires that the Government should be subject to the law, rather than the law subject to the Government.

In other words, according to this doctrine, no man can be arrested, punished or be lawfully made to suffer in body or goods except by due process of law and for a breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey described this principle as ‘the central and most characteristic feature’ of Common Law.

B. Equality before Law

The attribute of ‘Rule of Law’ Dicey stated was ‘equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.’

Explaining the second principle of the rule of law, Dicey states that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. According to him, in England, all persons were subject to one and the same law, and there were no extraordinary tribunals or special courts for officers of the Government and other authorities. According to him Courts are supreme throughout the state. He criticised the French legal system of Droit Administratif in which there were separate administrative tribunals for deciding cases between the officials of the State and the citizens. According to him, exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality. Of course, Dicey himself saw that administrative authorities were exercising ‘judicial’ functions though they were not courts. He, therefore, asserted: “Such transference of authority saps the foundation of the rule of law which has been for generations a leading feature of the English Constitution.”

According to Dicey, any encroachment on the jurisdiction of the courts and any restrictions on the subject’s unimpeded access to them are bound to jeopardize his rights. In the words of Lord Denning, “Our English Law does not allow a public officer to shelter behind a Droit Administratif.”

C. Predominance of Legal Spirit

Explaining his third exposition of ‘Rule of Law’, Dicey asserted that the general principles of the Constitution were the result of judicial decisions in the Courts in England. In many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written Constitution, in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The Constitution is not the source by the consequence of the rights of the individuals. Thus, Dicey emphasised the role of the courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document, as in the latter case, they can be ignored, curtailed or trampled upon. He stated, “The Law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code, is not the source but the consequences of the rights of individuals, as defined and enforced by courts.”

Modern meaning of Rule of Law

The modern concept of "Rule of Law" was developed by the International Commission of jurists in 1959, which was later on confirmed at Lagos in 1961. The Jurists recorded that "rule of law" depended not only on the existence of adequate safeguards against the abuse of power by the executive but also on the existence of effective Government capable of maintaining law and order and ensuring social and economic conditions of life for society.

The modern concept of the Rule of Law is fairly wide. Davis gives seven principal meanings of the term Rule of Law:—

i. Law and Order,ii. Fixed rules;iii. Elimination of discretion;iv. Due Process of law or fairness;v. Natural Law or observance of the principles of natural justice;vi. Preference for judges and ordinary courts of law to executive authorities and

administrative tribunals; andvii. Judicial review of administrative action.

Formal and Ideological meaning of ‘Rule of Law’

The term 'rule of law' can be used in two senses: formal sense, and ideological sense. In purely formal sense the rule means no more than organised public power. In this sense the rule of law refers to the rule of organisation.

In purely formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of Nazi Regime qualify as law.

In ideological sense, the rule of law sets an ideal for any government to achieve. This concept was developed by the International Commission of Jurists known as Delhi Declaration, 1959.

Development of Rule of Law in India

For a democratic government, rule of law is a basic requirement. The rule of law runs like a golden thread through every provision of the Constitution and indisputably constitutes one of its basic features, which requires that every organ of the state must act within the confines of powers conferred upon it by the Constitution and the law. The rule of law pervades over the entire field of administration.

Rule of law permeates the entire fabric of the Indian Constitution and indeed forms one of its basic features. Law in the context of the rule of law does not mean any law enacted by the legislative authorities, however arbitrary or despotic it may be. The necessary element of the rule of law is that law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form if the polity seeks to ensure this element by making the frame of law accountable to the people.

Even law can promote arbitrary power. Law and rule of law are two different concepts. As Justice Khanna emphasised in his celebrated dissenting opinion in the Habeas corpus case, "A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by statute.”

Every organ of the administration is regulated by the rule of law. The Indian Constitution embodies the modern concept of the rule of law. The concept of the rule of law exists in this country by virtue of the following features:

1) Supremacy of the Constitution - Dicey’s doctrine of the rule of law has been accepted and embodied in the Constitution of India. In the Preamble are enunciated the ideals of justice, liberty and equality. These concepts are enshrined in the Part III as fundamental rights and are made enforceable. The Constitution is supreme and all the three organs of the government, i.e. legislature, executive and judiciary are subordinate to and have to act in accordance with it. The

principle of judicial review is enshrined in the Constitution and subject can approach High Courts and Supreme Court for enforcement of Fundamental Rights guaranteed under the Constitution. Supreme Court under Art. 32 and High Court under Art. 226 can issue writs for enforcement of the Fundamental Rights.

If the executive or the government abuses the powers conferred on it or if the action is mala fide, the same can be quashed by the ordinary courts. All rules, regulations, ordinances, bye-laws, notifications, customs and usages are laws within the meaning of Art.13 of the Constitution. If they are Inconsistent or contrary to any provision of the Constitution, they can be declared ultra vires by the Supreme Court and the High Courts. No person shall be deprived of his life or personal liberty except according to the procedure established by law. The executive and legislative powers of the State and the Union are required to be exercised according to the provisions of the Constitution. The government and public officials are not above law.

2) Constitutional requirement of equality - Equality before law as a postulate of rule of law has been accepted and adopted under Art 14 of the Constitution. The maxim ‘the king can do no wrong' has no application in India. The government and public authorities are subject to the jurisdiction of ordinary courts of law and for similar wrongs are to be tried and penalized similarly.

In Som Raj v. State of Haryana it was held by the Supreme Court that normally, the order of appointment would be in order of merit of candidates from the select list. Even when the discretion is conferred on an executive authority, it must be exercised in a reasonable, manner and should not be exercised arbitrarily. "The absence of arbitrary power is the first postulate of the rule of law upon which our whole constitutional edifice is based. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of rule of law.”

3) Rule of law as a feature of basic structure - In Kesavananda Bharti v. State of Kerala some of the judges constituting majority were of the opinion that the Rule of law was an "aspect of the doctrine of basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend."

In Indira Nehru Gandhi v. Raj Narain, wherein the Apex Court invalidated Clause (4) of Article 329-A, inserted in the Constitution by the Constitution (39th Amendment) Act, 1975, to immunize the election dispute to the office of the Prime Minister from any kind of judicial review, the following facets of "Rule of Law" may be culled out——that, the Rule of Law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere,

—that, the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of "the Rule of Law" and of justice within a politically democratic constitutional structure,—that, since the validation of the Prime Minister's election was not by applying any law, therefore, clause (4) of Article 329-A, offended the Rule of Law.

4) Elimination of arbitrariness, and not of discretion - Expounding the concept of rule of law in Supreme Court Advocate-on-Record Association v. Union of India, the Supreme Court laid down that rule of law does not rule out existence of discretionary power completely. In this case the court held the view that vesting of absolute power in one individual is not warranted under the constitutional scheme. For the rule of law to become realistic, there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper governance and within the areas of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines, or norms further reduces the area of discretion, but to that extent discretionary authority has to be given to make the system workable.

Judicial activism as valiant enterprise is seen as a part of the efforts of Constitutional Courts in India to establish rule of law society which postulates that no matter how high a person may be the law is always above him. The Court is also making efforts to link rule of law with human rights of the people. The Court is evolving strategy by which it can force the government not only submit to law but also create conditions where people can develop capacities to enjoy their rights in proper and meaningful way. It is the responsibility of the public administration for effective implementation of rule of law and constitutional commands which effectuate fairly the objective standards laid down by law. Every government servant holding public power is a trustee of the society and accountable for due effect national goals.

Although all the merits are unhurt in the concept of the Rule of law, the only negative aspect of the concept is that respect for law degenerates into rigidity of legalism which is injurious to the nation.