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Synopsis

I. Introduction.

II. Meaning of Rule of Law

III. Application of this doctrine.

IV. Modern concept of Rule of Law.

V. Seven principles of Rule of Law

VI. Rule of Law under Indian Constitution

VII. Supreme Court’s principles regarding the Rule of Law.

Rule of Law.

I. Introduction.

Rule of Law is the basic principle of the English Constitution.

Rule of law is embedded in the United States and Indian Constitution. The Administrative Law is entirely based upon the doctrine of Rule of Law. Sir Edward Coke, Chief Justice in James I's reign, was the originator of this concept. This theory of Coke was developed by Dicey in his classic work “The Law and the Constitution” published in the year 1885.

II. Meaning.

According to Dicey, the Rule of Law is one of the fundamental principles of the English Legal Systems. In the aforementioned book, he attributed the following three meanings to the said doctrine:

(i) Supremacy of Law.

Dicey stated that the 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 or prerogative or even wide discretionary power on the part of the Government.

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 according to this doctrine. Dicey described the principal as the central and most characteristic feature of common law.

(ii) Equality before Law.

Dicey stated that there must be equality before law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts.

He criticized the French Legal System of Droit Administrative in which there were distinct Administrative Tribunal 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 special Tribunals was the negation of equality.

(iii) Judge made Constitution.

Dicey stated that in many countries rights such as rights to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written Constitution. Those rights are the result of judicial decisions in concrete cases which are actually arisen between the parties.

Dicey emphasized the role of the Court of Laws 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.

III. Application of this doctrine.

The Doctrine of the Rule of Law was applied in concrete cases in England. A man if wrongfully arrested by the Police can file a Suit for damages against the Police as if they were private individuals.

Wikes v Wood – 1763

It was held that an action for damages for trespass was maintainable even if the action complained of was taken in pursuance of the order of the Minister.

Entick v Carinton – 1765

A publisher’s house was ransacked by the Kings messengers sent by the Secretary of State. An action for trespass, 300 Pounds were awarded to the publisher as damages.

IV. Modern concept of Rule of Law.

The concept of Rule of Law as propounded by Dicey was not accepted completely even in 1885 when he formulated it. Even in today’s modern world it cannot be accepted in toto. Supremacy of the Constitution is accepted. The principal of Judicial Review has been embodied in the Constitution of India. Any person aggrieved may approach the Supreme Court under Article 32. All Rules, Regulations, Bye-Laws, Notifications, and Customs and Usages are considered to be law within Article 13 and if they are inconsistent, contrary to any provisions thereof they are declared as ultra vires by the Supreme Court or the High Court. Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law. The maxim King could do no wrong is not applicable. Rule of Law is the basic structure of the Constitution of India as laid down in the case of Keshavnanda Bharati. Article 14 states that there shall be equality before law and equal protection of law. Article 16 states that equal opportunity in public employment will be given to the citizens.

V. Seven principles of rule of law

Davis in his classic work "Administrative Law" gives seven principles to the term Rule of Law:

1. Law and order.

2. Fixed rules.

3. Elimination of discretion.

4. Due process of law or fairness.

5. Natural law or observance of the principles of natural justice.

6. Preference for judges and ordinary courts of law to executive authorities and administrative tribunals.

7. Judicial review of administrative action.

VI. Rule of law under Indian Constitution

-Dicey's rule adopted in Constitution.

-Part III provides fundamental rights which are guaranteed.

-Supremacy of Constitution accepted.

-Principle of Judicial review embodied in Constitution.

-Any person aggrieved may go to Supreme Court (Art. 32)

-All rules, regulations, by laws, notifications and customs and usages are laws within Art. 13 & if they are inconsistent, contrary to any provisions thereof they are declared ultra vires by SC/HC.

-Art. 21 "no person shall be deprived of his life or personal liberty except according to procedure established by law".

-The maxim "King can do no wrong" not applicable.

-Rule of law basic structure of Constitution as laid down in Keshavnanda Bharti.

-Art. 14: equality before law and equal protection of law.

-Art 16: equal opportunity in public employment.

VII. Supreme Court’s principles regarding the Rule of Law.

(i) The State should not pass a discriminatory law.

(ii) The State should not interfere with religious beliefs.

(iii) The State should not place a new influence on freedom.

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